One of the issues that inevitably comes up in Texas Family Mediations, especially when the parties are trying to creatively resolve their dispute by coming up with a custom made possession order for the child, is the question of whether the judge will approve the mediated agreement once it is presented to the court to be fashioned into a court order.
It would seem to be a fundamental right for two parents to come up with a parenting plan for their child. However, in Texas, this is not the case. The parties, even if they are in full agreement with how the child will be parented, must present their plan to the judge for his or her approval. This is because it has been the practice of some family law judges to take a heavy handed approach of setting aside agreements of parents because, in the judge’s own opinion, the agreement is not in the child’s best interest. The judge’s assumption of this sweeping power is based on case law and the long standing tradition of judges.
However a 2005 amendment to Texas Family Code 153.0071, the statute governing alternative dispute resolution procedures in family law cases, adds a new requirement that effectively takes the sweeping power away from judges to override the judgement of parents. In the the old statute, a court could decline to enter a judgement on a mediated settlement agreement regarding the conservatorship of a child if the court found “the agreement is not in the child’s best interest”. In 2005, subsection (e-1) was added which strictly limited this right of the judge. Now for a Court to disapprove a properly executed and submitted mediated settlement agreement, not only must the court find that the plan is not in the child’s best interest, but also it must find that a party to the agreement was a victim of domestic violence and was too impaired by that to make a good decision. In essence, the legislature has taken away the power of judges to override the wishes of parents to decide at mediation what is in the child’s best interest. The only time the court may not render an order based on a mediated settlement agreement is in the very narrow situation when one of the parents is (a) a victim of domestic violence and (b) that past domestic violence has caused the person to psychologically not be able to make decisions that are in a child’s best interest.
There are several outstanding questions that need to be answered in how this new provision of the ADR procedure statute will be applied. For example, does the domestic violence referred to have to stem from the specific relationship or facts surrounding the present case, or does any past domestic violence count? What if the domestic violence occurred years ago? What if the domestic violence was from a former relationship that has no connection with the present case?
Despite these and other unanswered questions, this newly revised statute is a long step in the right direction for Texas Family Law. It has firmly placed the power of parents to enter into written agreements about their children without unnecessary influence of the courts. For parents going through a divorce or other suits affecting the parent-child relationship, they have the freedom to fashion their parenting plans according to their wishes, and with minimal interference from an impersonal court. For Texas family law mediators and family law attorneys, this means that they have the freedom to help the parties fashion a binding parenting plan with as much customization as is necessary for the personal situation of the parties. No longer will it be necessary to worry about creative solutions for custody and possession going outside of the comfort zone of judges who are afraid to approve any parenting plan that is not cookie-cutter. In today’s age of mixed and blended families, non-traditional families and families separated by long distances, this flexibility is absolutely essential for parties to peaceably resolve their issues regarding their children.
Texas Family Code Sec. 153.0071 as amended states in part:
“…(d) A mediated settlement agreement is binding on the parties if the agreement: (1) provides in prominently displayed statement that is in boldfaced type or capital letters or underlined that the agreement is not subject to revocation; (2) 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.
(e) If the mediated settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or any other rule of law.
(e-1) Notwithstanding Subsections (d) and (e), a court may decline to enter a judgment on a mediated settlement agreement if the court finds that: (1) a party to the agreement was victim of family violence, and that circumstance impaired the party’s ability to make decisions; and (2) the agreement is not in the child’s best interest.” (emphasis added).