In a decision that has major implications for family law in Texas, a majority of the Texas Supreme Court ruled on Sept. 27 that trial court judges may not overturn mediated settlement agreements between parents — even when the judge believes the agreement may not be in the best interest of a child.

The 5-4 ruling in In Re Stephanie Lee resolves one of the court’s oldest and most difficult cases — one many family law practitioners and judges have been anticipating for nearly two years.

The case pits two fundamental family law policies against each other: a trial court’s fealty to the alternative dispute resolution process under §153.0071 of the Texas Family Code versus a judge’s duty to decide cases in the best interest of children as mandated under Family Code §153.002.

A majority of the court decided that, in situations where trial court judges must make tough choices about whether to overturn a mediated settlement, they must adhere to §153.0071, a law the Texas Legislature passed encourage parties to resolve their disagreements through mediated settlement agreements (MSAs).

“It is clear that the MSA statue was enacted with the intent that, when parents have agreed that a particular arrangement is in their children’s best interest and have reduced that agreement to a writing complying with section 153.0071, courts must defer to them and their agreement,” wrote Justice Debra Lehrmann. She was joined by Justices Phil Johnson, Don Willett, Eva Guzman and Jeff Boyd for the central parts of her opinion.

“For these reasons, we hold that section 153.0071 (c) encourages parents to peaceably resolve their child-related disputes through mediation by foreclosing a broad best interest inquiry with respect to entry of judgment on properly executed MSAs, ensuring that the time and money spent on mediation will not have been wasted and that the benefits of successful mediation will be realized,” Lehrmann continued. “Allowing courts to conduct such an inquiry in contravention of the unambiguous statutory mandate in section 153.0071 has severe consequences that will inevitably harm children.”

Justice Paul Green wrote an opinion dissenting to the majority’s conclusions, arguing that §153.002 — which mandates that judges decide custody disputes in the best interest of children — is the stronger policy interest.

In his dissent, Green noted that the trial court refused to adopt the MSA because it believed the child at the center of the custody dispute would be exposed to a registered sex offender, whom the mother in the case had married after divorcing the child’s biological father. However, the majority and dissenting opinion authors were at odds over the evidence that the trial judge considered in rejecting the MSA.

“The Legislature has made the policy of this state clear: ‘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’ ” Green wrote in a dissent, joined by Chief Justice Wallace Jefferson and Justices Nathan Hecht and John Devine.

“I would hold that under Texas Family Law section 153.0071, and the Family Code as a whole, a trial court has discretion to refuse to enter judgment on a modification pursuant to an MSA that could endanger the child’s safety and welfare and is, therefore, not in the child’s best interest. To suggest that the Legislature intended otherwise is, I believe, absurd,” Green wrote.

Justice Eva Guzman wrote a concurring opinion explaining that, while she agreed that §153.0071 precludes a broad best-interest inquiry by a judge in such disputes, that statute “does not preclude an endangerment inquiry.”

“The Court fails to address the endangerment inquiry, but I believe the issue is critical because the facts of this case potentially implicate the inquiry — discussion of which provides much-needed guidance to the trial courts,” Guzman wrote. She noted that the trial court’s record of the case is sparse, and that the majority and dissent drew different conclusions from that record.

“In sum, I believe section 153.0071 of the Family Code precludes a broad best-interest inquiry. A trial court may, however, when presented with evidence that entering a judgment on an MSA could endanger the safety and welfare of a child, refuse to enter judgment on the MSA,” Guzman wrote.

Difficult Issue

Scott Rothenberg, a Houston solo who represents Stephanie Lee, the mother in the case, applauds the majority ruling in the case.

“The case has huge ramifications for Texas and anyone involved in achild-custody case,” Rothenberg says. “No. 1, it allows parents to enter into mediation in good faith to resolve differences without worrying about whether the trial court agrees with the settlement or not.”

“What parent in his right mind would go through the expense of mediation only to find out a judge disagrees?” Rothenberg says. “This is an absolute victory for alternative dispute resolution in Texas. If parents step away from the mediation system, the family court system in Texas would grind to a stop.”

San Antonio solo Clint Lawson, who represents Benjamin Jay Redus, who is the biological father in the case, says he’s discussed a possible resolution to the case with Rothenberg and anticipates an agreement.

Lawson notes that the high court rejected his argument that a narrow exception should be carved out in the law, allowing the trial judge to reject the MSA. However, he takes solace in Guzman’s concurrence, which he believes provides a “road map” on how to do that.

“Every judge that signs a family law order says, ‘This is in the best interest of the child.’ What’s the judge going to do when the judge thinks the [MSA] is not in the best interest of the child and signs it? Are they supposed to abdicate their duty?” Lawson says. “The alternative view — that says my position burns down the mediation statue — is exaggerated. There is another way to do this, and I think Justice Guzman came up with that solution.”

“Her position is: ‘We didn’t do it correctly, but you didn’t do it correctly, so you lose,’ ” Lawson says. “ That’s a harsh analysis, but there were insufficient findings in Guzman’s opinion to justify what we did.”

“Justice Guzman put one foot on either side but said, ‘Let me tell you what I think.’ And I appreciate that,” Lawson says. “I think we didn’t do it correctly for her because of the state of the law and the evidence in this case.”

Georganna Simpson, a Dallas solo who filed an amicus brief in the case on behalf of the State Bar of Texas’ Family Law Council, believes the majority ruled correctly in protecting MSAs.

“Here you have the primary group of lawyers that represent the interest of family lawyers all over the state, and we advise the court that we think this will disturb the mediation process,” says Simpson, noting that the Family Law Council amicus committee had long discussions about the pros and cons of its position.

Simpson also believes there are other ways for a trial judge to deal with MSAs with which they have concerns. The judge could approve the MSA and always hear a motion to modify that agreement later, she says.

Lawson says he was surprised that Lehrmann and Guzman, who both sat as family court judges before arriving at the high court, weren’t exactly on the same side in the case.

“The justices obviously had trouble with this case. And this is the biggest family law case in the last 10 years,” Lawson says. “It deserves the kind of conversation that it’s had for the last two years. It really does,” he says.