http://www.kxii.com/home/headlines/116365109.html

Early in my career, I worked as a prosecutor in the Grayson County District Attorney’s Office, and I spent a fair amount of time in Denison. I found this story interesting, but have no idea why Denison would have so many more divorces than average.

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

To start with, the Family Code breaks up what most people think of as “custody” into two separate, but related, concepts: “conservatorship” and “possession.”  “Conservatorship” refers to the decision-making rights a parent has on behalf of his or her child (the right to make educational decisions, or to consent to medical treatment, for instance).  “Possession”, of course, refers to the times a parent is entitled to physical possession of the child.

Regarding conservatorship, the Family Code tells judges to presume that it is in the best interest of the child that the parents be named “joint managing conservators.” See Texas Family Code §153.131(b).  Generally, this means the judge is going to give each parent a pretty equal set of decision-making rights for the child, unless there are some exceptional circumstances in the case (family violence or drug use, for instance).  The exception to this is that the Family Code tells the judge that he or she should, in most cases, give one parent or the other the “exclusive right to designate primary residence” of the child.  See Texas Family Code §153.133.  That is what lawyers mean when they use the phrase “primary custody.”

This relates to the issue of possession because the Family Code tells the judge that, whichever parent does NOT have the “exclusive right to designate primary residence”, should usually have possession of the child according to the “Standard Possession Order”. See Texas Family Code §153.252.  Most clients misunderstand the Standard Possession Order and, as a result, lose sleep when they’re dealing with a contested-custody case.  They often think that, if the other parent wins “primary custody”, they will almost never see their kids and be reduced to distant observers of their kids’ lives.

Fortunately, this isn’t the case.  The Standard Possession Order provides the “non-primary” parent with more time with their kids than most people realize.  As a starting point, the Standard Possession Order gives the “non-primary” parent the first, third and fifth weekend of every month.  By default, those weekends are only from Friday at 6:00 p.m. to Sunday at 6:00 p.m.  But the Family Code allows the “non-primary” parent to elect for those weekends to be extended – to start earlier (Thursday after school) and end later (Monday morning when school resumes).  The Code also gives the “non-primary” parent 30 days in the summer, and splits holidays equally between the parents.

The attached calendar illustrates the time the “non-primary” parent would have this year assuming each parent makes the standard elections to maximize their time with the kids.  The bottom line is that, when you count up the nights that the child will spend with each parent, the “primary” parent will have more (212 nights, or 58%) than the “non-primary” parent (153 nights, or 42%).  Obviously, you’d rather have 212 than 153.  But hopefully this makes clear to anyone worrying that they’re “never going to see” their kids that that’s just not the case.

2012 Expanded Standard Possession Order Calendar