Mediation. Most family courts have required parties to mediate prior to going to trial for decades. Of course, particularly in cases involving children, many lawyers and judges assumed that courts had the authority to reject a mediated settlement agreement if the judge thought it was contrary to the children’s best interest.
The Texas Family Code provides that a mediated settlement agreement is binding on the parties if:
(1) the agreement prominently states that the agreement is not subject to revocation;
(2) the agreement is signed by each party to the agreement; and
(3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed.
The Family Code further states that a party is entitled to judgment on the mediated settlement agreement. However, the Code further states that a court may decline to honor the agreement if it finds:
(1) a party to the agreement was a victim of family violence;
(2) that circumstance impaired the party’s ability to make decisions; and
(2) the agreement is not in the child’s best interest.
Well, a few years back, the assumption that judges could conduct a “best interest” analysis before approving a mediated settlement agreement was put to the test by the Texas Supreme Court in In re Stephanie Lee, 411 S.W.3d 445 (Tex. 2013).
When this case was started, Mom originally had custody of the child. Dad sued for a change of custody on the grounds that Mom was a bad mom who was married to a registered sex offender. After suit was filed, the parties attended mediation and settled the case. The terms of the mediated agreement included provisions for the husband to stay away from the child at all times. All of the requirements for a binding agreement were met.
The judge refused to sign a final order because of allegations regarding the sex offender husband’s behavior. The judge found that the mediated agreement was not in the best interest of the child. Importantly, there was no evidence of family violence in the case.
The case went up through the Court of Appeals and, ultimately, ended up in the Texas Supreme Court. The Supreme Court found that, in the absence of violence, the Court has no authority to set aside agreements of the parties related to children.
Lesson: Mediated settlement agreements are not mere contracts. They are super contracts that have the ability to tie a judge’s hands. This can be a blessing and a curse. If you enter a crummy deal, you usually cannot take it back. On the other hand, if you and your spouse want to enter into an agreement that a judge might not otherwise approve, mediation is a tool that can be used to ensure the court honors your agreement.
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