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Understanding the Enforceability of Mediated Settlement Agreements – In re Lee

A mediated settlement agreement is a binding agreement made by the parties pursuant to § 6.602 or, if the suit concerns children, § 153.0071 of the Texas Family Code. The Code states that mediated settlement agreements are binding on the parties if they state in bold, underlined, or capital letters that the agreement is irrevocable, are signed by both parties, and, if the parties are represented by counsel, are signed by both parties’ attorneys. Tex. Fam. Code §§ 6.602(b) and 153.0071(d). The public policy of Texas is to “encourage[] the peaceful resolution of disputes.” Tex. Civ. Prac. & Rem. Code § 154.002. As such, trial courts will honor a mediated settlement agreement if the agreement meets the requirements of the statute. “[A] party is entitled to judgment on the mediated settlement agreement.” Tex. Fam. Code §§ 6.602(c) and 153.0071(e). A mediated settlement agreement is said to be “more binding than a basic written contract.” In re the Marriage of Joyner, 196 S.W.3d 883, 889 (Tex. App.—Texarkana 2006, no pet.)

Yet elsewhere in the Texas Family Code, the legislature requires that “[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Tex. Fam. Code § 153.002. What will the court do if it believes the terms of a mediated settlement agreement are not in the child’s best interest?

The Supreme Court of Texas explored this issue recently in the case of In re Lee, 411 S.W.3d 445 (2013). There, the parties executed a mediated settlement agreement that prohibited the mother’s new husband from having contact with the child that was the subject of the suit. Id. at 447-48. The trial court questioned why the new husband was mentioned in the agreement, and the father revealed that the new husband was a registered sex offender. Id. at 448. Upon hearing testimony that the new husband may have slept naked in his bed with the daughter next to him, the trial court refused to enter judgment on the mediated settlement agreement, stating that it was not in the child’s best interest. Id. The mother brought suit to force the trial court to honor the mediated settlement agreement. Id.

The Supreme Court agreed with the mother. The Court noted that § 153.0071 only allows trial courts to refuse to enter a judgment when “(1) a party to the agreement was a 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.” Tex. Fam. Code § 154.0071(e-1) (emphasis added). All three criteria must be met. In the case before the Court, there was no evidence of family violence, therefore the Court did not have the discretion to decline to honor the mediated settlement agreement. In re Lee, 441 S.W.3d at 448 and 452.

Thus despite the mandate from the statute that the child’s best interest be the primary consideration in custody proceedings, trial courts are not authorized to ignore parents’ mediated settlement agreements—even if, in a trial court’s opinion, the agreement is not in the child’s best interest—absent a showing of family violence. The Supreme Court believed that the legislature believed that “parents are in a position to know what is best for their children” more so than trial courts and that mediation and cooperation between parents furthers a child’s best interest more than litigation would. Id. at 454.

A final note: the Court’s interpretation of the statute does not require trial judges to turn their backs on children who may be in danger just because their parents came to an agreement concerning the child. Rather, the Court points to § 261.101 of the Texas Family Code, which requires trial judges, among others, to notify the Department of Family and Protective Services if they “hav[e] cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect.” Tex. Fam. Code § 261.101. Children are still protected, as is parents’ liberty to raise their children how they see fit. “In this sense, parents who enter into [mediated settlement agreements] are no different from the myriad of parents in intact families who are presumed to act in their children’s best interests every day.” In re Lee, 411 S.W.3d at 454.

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