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Texas child custody case could upend entire mediation process

On Behalf of | May 30, 2012 | Firm News

A Texas father’s quest to have his own child custody agreement tossed out could have far-reaching consequences for disputed divorces across the state. At the heart of the issue is a conflict between long-held state laws and the safety of his daughter.

At the onset, the man’s case wasn’t unusual. He and his ex-wife followed the state’s recommended mediation process to make custody arrangements for their 7-year-old daughter. They both signed the document, which is binding and normally can’t be rejected by a judge.

But just a few weeks later, at a hearing to enter the agreement into the court record, the father asked the judge to intervene, saying he had new information that made him fear for his daughter’s well-being. He said he’d learned that his ex-wife’s new husband, a registered sex offender who previously wasn’t allowed contact with children, had slept naked with the girl present in the same bed. His probation ended recently, allowing him to be in the girl’s presence during visits with her mother.

The judge refused to enter the agreement, as did another judge at a subsequent hearing. The girl’s mother and her lawyer appealed, saying the judge was required to enter agreements settled by mediation and that doing otherwise would upset the entire mediation system.

The Texas Supreme Court must now interpret conflicting portions of the Texas Family Code, which contains two overriding policy goals: Always make the best interest of the child “the primary consideration,” and provide a safe, stable and nonviolent environment for the child. But the same section states there are only two conditions for rejecting mediated settlements: when one party was the victim of family violence that affected their decision, “and if the agreement is not in the child’s best interests.” Since the father testified he was not a victim of family violence, there may not be grounds to reject the agreement, even if it meets the second condition.

Mediation agreements are valuable in part because they’re binding, preventing judges from easily rejecting them every time a parent changes his or her mind after signing one. But if an agreement puts a child at risk of harm, what options should judges have? And should there be a vetting process for potentially false claims by parents? These are now issues for the state Supreme Court to decide.

Source: The Statesman, “Child safety case could affect disputed Texas divorces,” Chuck Lindell, May 28, 2012