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In re Lee Part 2: Parental Autonomy vs. Judicial Oversight

Just Court ADR, October 21st, 2013

For the second part of this series on the family court mediation case In re Lee, I’ll examine the laws at issue in the case, then discuss the legal reasoning and policy that the Texas Supreme Court majority and dissent each followed in making their decisions. The crucial statute in the case was Texas Family Code Chapter 153, which relates to custody. Two sections of that code came into conflict in the case.

Best Interest of Child (§153.002) says the best interest of the child should always be the court’s primary consideration in custody issues.

Alternate Dispute Resolution Procedures (§153.0071) includes rules for mediation. Several parts of this section were relevant to Lee’s case.

First, ADR Procedures provides instruction on what makes a mediated settlement agreement (MSA) binding. If an MSA has a prominent statement of irrevocability that is signed by both parties and their attorneys (if present), then it becomes binding. This statement was properly written and signed in In re Lee.

Second, ADR Procedures states that parties to binding MSAs are “entitled to judgment” on the agreement “notwithstanding…any other rule of law.” Stephanie Lee used this rule when the trial judge refused to enter the agreement due to best interests.

However, the ADR Procedures state that a court can refuse to enter judgment when all three of the  following are present:

1) A party was the victim of family violence

2) This situation impaired that party’s decision-making ability in the mediation


3) The MSA produced was not in the best interest of the child.

The court majority explained that the plain language of the ADR Procedures showed that the Texas Legislature had a strong pro-finality policy in custody mediation. The ADR Procedures law is newer and more specific than the best interests law. Therefore, the majority found that the Legislature intended to supersede the best interests law with the more stringent exception found in the ADR Procedures.

The majority explained that a pro-finality policy made sense because high-stakes custody litigation is so damaging to children. The opinion includes nearly a page of citations to studies of how such battles harm children. In this view, a finalized MSA can itself be in the child’s best interests. The majority held that by clearing a path for binding MSAs, the Legislature intended to protect parents and children from damaging court battles.

The ruling also favors parents’ autonomy in mediation over judges’ ability to intervene in MSAs. It assumes that most parents know their children’s interests better than courts do, and will act accordingly. When an agreement puts a child’s welfare in jeopardy, judges have procedural tools to take action. However, “rejecting an MSA is not one of them.”

The dissent took the opposite stance on these policies. First, the dissent would have held that the plain language of the Best Interest of Child law took precedence over the ADR Procedures. Chapter 153 should be taken as a whole, not as parts in isolation, and best interest was meant to be the primary consideration in all court decisions.

The dissent also argued that the Legislature’s overall policy favored best interest of the child, and therefore it would be absurd to override that policy for mediation finality. After all, the Legislature had created more than a hundred provisions addressing best interest of the child, and surely did not mean to override such important policy for MSA finality. Ideally, the dissent said, the conflicting positions could “harmonize.” The ADR Procedures would still encourage parents to mediate, but judges would then be allowed to protect children using best interests.

Ultimately, the majority and dissent split on questions of parental autonomy and judicial oversight. They split on which group would be more likely to make sound decisions about children’s well being. The majority supported parents’ rights to decide their children’s welfare without subjecting them to a judge’s scrutiny. The dissent focused on those parents who make bad decisions for their children, and stressed the need for judicial oversight to temper the results of a bad mediated settlement agreement.

The next post will examine the expectations In re Lee places upon individual actors in custody mediation: parents, judges, mediators, and attorneys.

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2 Responses to “In re Lee Part 2: Parental Autonomy vs. Judicial Oversight”

  1. […] The next post will look at how the court weighed legislative policy supporting mediation finality against policies supporting the best interest of the child, and the alternatives the dissent preferred. […]

  2. […] or bring one to their mediation? Unless they meet the narrow family violence exception described in my second post, they may not be allowed to alter the terms of their agreement after the […]

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