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Texas Supreme Court to decide strength of custody mediation

The Texas Supreme Court will decide whether or not a mediated custody agreement between parents should be sanctioned, even if a judge believes it is not in the best interest of the child. Mediation for divorcing couples is cheaper, faster and less stressful for all parties involved. Therefore, state law gives our family court judges very little discretion on mediated settlements. The agreements are usually entered into court documents during routine hearings without any objections.

However, it was during one of those routine hearings when a Houston father asked the judge to intervene and rescind the mediated visitation and custody agreement. The father had just learned that his ex-wife and new husband – a convicted sex offender – had slept naked in bed with the daughter between them. The ex-wife even admitted under oath that she allowed her husband to stay at the house while her daughter was present, even though his probation did not allow his contact with children.

Seems like a no-brainer, right?

But, keep scratching your head because the question in front of the Supreme Court is not about the custody dispute, but whether or not a judge can refuse the mediated agreement. It’s all in the wording and interpretation of the Texas Family Code. In order for a judge to reject a mediated agreement, two factors must apply:

  1. One of the parties must be influenced by family violence, AND
  2. The agreement is not in the child’s best interest

In other words, BOTH factors must apply simultaneously. Since the mediation agreement was not signed under duress of violence, the State Bar of Texas’ family lawyers argues that the judge must accept the settlement.

Because many Texas counties require mediation as part of the divorce process, the argument here is whether or not the future of binding mediation agreements will be at risk if a parent can back out at the last minute.

We are anxious for the Supreme Court’s ruling in this case, but it has not issued a deadline for a decision.

Source: statesman.com, “Child safety case could affect disputed Texas divorces,” Chuck Lindell, May 28, 2012

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