Using a mediator to resolve child custody and other matters in divorce is highly encouraged by the Texas judicial system. It reduces their dockets, lowers taxpayer costs and can even help the pocketbooks of the parties to the divorce. However, when couples do not use an attorney to protect their own interests during mediation, a soon-to-be ex-spouse may not consider certain factors and later regret a child custody agreement reached through mediation.

That exact situation resulted in a case that will soon be decided by the Texas Supreme Court. Benjamin Redus and Stephanie Lee divorced in 2007. Three years later, Redus sued to change their divorce decree and asked for primary custody, meaning their daughter would live with him the majority of the time. They ultimately went to mediation and reached an agreement whereby Redus obtained primary custody of their daughter, but Lee would get visits from her daughter at her home one weekend per month and more often during the summer.

Redus and Lee appeared in court three weeks later at a routine hearing that would enter the agreement into the court record, but Redus asked an associate judge to rescind the agreement. Redus claimed that Lee’s new husband, a registered sex offender who had been convicted for indecent sexual contact with an 11 year-old girl, had slept naked beside Redus’ child and Stephanie Lee. Therefore, Redus felt the mediated custody agreement would be unsafe for the daughter.

The associate judge, deciding that it was in the best interest of the child to rescind the agreement, did so. A district court judge upheld the ruling. Stephanie Lee appealed, claiming that the agreement was binding and the judge had no authority not to enter the agreement into the court record, which is usually the procedure with a mediated agreement regarding child custody. The Texas Supreme Court heard oral arguments on the issue in February, 2012.

Mediated Agreements Usually Binding

The decision will ultimately rest on the court’s interpretation of the language of the relevant statute. In Texas, a judge can only rescind a mediated agreement if:

  • One party was the victim of family violence that affected their decision; and
  • The agreement is not in the child’s best interest

Because the legislature included “and” in the wording, Lee’s attorney argued that both conditions must be met to rescind the agreement. He also argued that Lee’s husband is restricted from staying with his wife during the child’s visits, so there is no danger to Redus’ daughter.

The Texas Supreme Court has yet to issue an opinion, and currently there is no deadline to do so. The ruling may ultimately affect mediated child custody disputes because a court may be able to refuse to enter a mediated child custody agreement.

Contact an Attorney

If you are engaged in a decision involving child custody, it is essential to contact an experienced attorney who can inform you of your legal options and ensure your child is put in a situation that is in his or her best interest.