Interesting issue before the Texas Supreme Court

Most courts handling family law cases in Texas will require, prior to holding a trial, that the parties attempt to settle the case through mediation.  Mediation is a relatively informal and non-binding process – at least, it’s non-binding in the sense that the mediator can’t force anyone to do anything they don’t want to do.  But, once the parties sign a “mediated settlement agreement”, with very few exceptions, there’s no backing out of it.

If one side changes their mind afterward, the other side can compel the judge to sign a judgment based on the terms of the mediated settlement agreement.  That’s because Texas Family Code Sec. 6.602(c) says that, assuming the mediated settlement agreement meets some very basic requirements, “a party is entitled to judgment on the mediated settlement agreement”.

But, the Family Code also says, in Sec. 153.001(a)(2) that it is the public policy of the State to “provide a safe, stable, and non-violent environment for the child”.  Further, Sec. 153.002 says that “[t]he best interest of the child shall always be the primary consideration of the court in determining issues of conservatorship and possession of and access to the child.”  So, what happens when there is a valid mediated settlement agreement that might not be in the best interest of the child?

That’s the issue the Texas Supreme Court is addressing in Case No. 11-0732, In Re: Stephanie Lee.  In this case, the father, Benjamin Redus, filed suit to modify the terms of he and his ex-wife’s divorce decree.  He and his ex-wife, Stephanie Lee, went to mediation where they each signed a mediated settlement agreement.  The mediated settlement agreement gave Redus primary custody of the couple’s daughter, and allowed Lee weekend visitation.

Three weeks later, before the judge signed a judgment based on the mediated settlement agreement’s terms, Redus changed his mind.  He asked the judge to let him back out of the mediated settlement agreement.  The reason Redus gave was that his ex-wife’s new husband, who had been on probation for indecency with a child, was now off of probation and no longer under the criminal court order to stay away from children.  It’s interesting to note, however, that the mediated settlement agreement Redus was seeking to get out of, contained a provision that Lee’s new husband had to stay at least 5 miles away from the daughter.  Lee, of course, asked the judge to grant her a judgment per the terms of the mediated settlement agreement.

The judge of the trial court sided with Redus, refusing to sign a judgment.  Lee then appealed the case, seeking a higher court order to compel the trial court judge to sign the judgment.  The Attorney General has filed a brief on behalf of Mr. Redus.  The State Bar has filed a brief in support of Lee.

My guess is that the Supreme Court will side with Redus.  But, it will be interesting to see what kind of limits they put in their ruling.  Exposing a child to a predator is one thing.  But, what about something less serious?  How far will the Supreme Court let parties stretch the “best interest of the child” in order to get out of a mediated settlement agreement?

Links to the Supreme Court’s Case Information page and an Austin American-Statesman story on the case:

http://www.supreme.courts.state.tx.us/opinions/Case.asp?FilingID=32873

http://www.statesman.com/news/texas-politics/child-safety-case-could-affect-disputed-texas-divorces-2379689.html

About these ads

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s