A recent article in the Austin American Statesman highlights an important case at the steps of the Texas Supreme Court that calls into question the role of mediation in resolving child custody disputes and how to determine the best interest of the children involved. The case concerns a custody dispute between Benjamin Redus and his ex-wife, Stephanie Lee. In 2011, Redus and Lee signed a binding, mediated settlement agreement regarding the custody of their seven-year-old daughter.
During a subsequent hearing to enter the agreement into the court record, Redus asked the judge to reject the agreement, explaining that he no longer felt comfortable with the arrangement which allowed weekend and summer visits between his ex-wife and daughter. The concerned father further explained that his change of mind was predicated upon his wife’s remarriage to a registered sex offender, who Redus claims, slept naked in bed with his daughter between them.
State District Judge Sheri Dean, rejected the mediated settlement agreement on the grounds that it was not in the child’s best interest. Lee is appealing the ruling to the Texas Supreme Court. The Texas Office of the Solicitor General, which submitted an amicus curiae brief at the request of the Supreme Court, supports Judge Dean’s ruling and argues that she properly declined to issue a writ of mandamus and that the Supreme Court should do the same. In opposition, the State Bar of Texas, for the first time in 25 years, has filed an amicus curiae brief supporting the granting of the mandamus.
The technical, legal argument being debated surrounds the wording and interpretation of the Texas Family Code. Specifically, whether earlier wording in the code which states that the “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) trumps later wording in the code that adds the requirement that a party to the agreement has to be a “victim of family violence, and that circumstance impaired the party’s ability to make decisions.” (TEX. FAM. CODE § 153.0071(e-1)(1). The Solicitor General argues precedent case law that says the Court must consider statutes as a whole, and not merely isolated provisions. The State Bar of Texas argues precedent case law that says a more specific statute controls over a more general one.
But this debate is not really about semantics; the real issue concerns the implications this case will have on the role mediation plays in family law cases. If the ruling is upheld, it puts in jeopardy the current binding nature of meditated settlement agreements, and opens the door for trial judges to reject them. The State Bar of Texas argues that this is contrary to the greater good of family law. Specifically, they argue that this would “ultimately increase the cost of resolving family law disputes by discouraging mediation” and would impose more stress on families by forcing them to “settle their disputes in the adversarial venue of the courts, rather than the cooperative environment of mediation.” The State Bar of Texas claims that this result is not in the best interest of children.
There are two problems with this argument. First, while there are instances when it is logical to sacrifice the good of an individual for the greater good of society, placing an innocent child in the home of a child rapist is not one of those exceptions and it would be unconscionable to do so. The current system is clearly not working properly if such a dangerous situation would be permitted under the law. In their own brief, the State Bar of Texas even cites precedent case law that “a court must adopt the interpretation supported by the statute’s plain language unless that interpretation would lead to absurd results.” It would undoubtedly, be absurd for a judge to not have the authority to prevent a child from being placed in the home of a convicted child rapist who has already violated his probation by being in contact with the child and has allegedly been allowed by the child’s mother to sleep naked in bed with the child. Even if the latter allegation turns out to be false, he is still a convicted sex offender and a thorough investigation should be conducted before the child is allowed in his presence.
Second, the argument of the State Bar of Texas is based on the assumption that parents will always be the best candidates for determining what is in the best interest of their children. This is clearly an inaccurate assumption if, just in the instant case, a mother is willing to allow her seven-year-old daughter to have contact with a registered sex offender who was convicted of raping an eleven-year-old girl. This is especially true being that the mother knew that contact would be in violation of her new husband’s probation. Divorces are most often a contentious process and multiple family researches have documented that the conflict it creates fosters maladjustment in children. Often times spouses going through a divorce are so consumed by hate for one another that the best interest of their children is compromised. While mediation can facilitate a more functional divorce experience, a mediator’s role is to arrive at agreements and not to take sides or to advocate for any party. Therefore, if the parents involved in mediation do not have the child’s best interest at heart, then there is no one representing the child’s best interest during these negotiations.
It is unfortunate that this case may simply come down to a judgment based on the basic wording of the Texas Family Code when the welfare of an innocent child is at stake. Hopefully the Texas Supreme Court will see past this technical, legal argument to the greater public policy and child welfare implications involved.