I went to a breakfast meeting with several family court judges the other day. One of the questions asked was how they were going to apply the case of In Re Stephanie Lee in their courts. They were all adamant that they would follow the law as instructed by the Texas Supreme Court. However, that doesn’t mean they all liked it.
In Re Stephanie Lee was handed down by the Texas Supreme Court on September 27, 2013. It fully and finally set down the rule that a Family Court Judge could not act in contravention of a mediated settlement agreement, even if she believed that the agreement wasnot in the best interest of the child. Once the parties agreed by MSA, the court’s ministerial duty was to accept it and incorporate it into a final decree.
Some Harris County Family Judges have shown their displeasure with this case in the manner they have handled cases settled by mediated settlement agreements. In one court, the proposed final decree is not permitted to include language that the decree is in the “best interest” of the children when it incorporates a MSA. In another court, the Judge(now retired) appointed amicus attorneys to cases “in the event of mediation”. This action, I assume, was to get the Judge’s voice heard through the amicus when she could not otherwise. This last practice was particularly onerous to parents who are generally getting along, and there is no evidence of child abuse. An unneeded amicus slows down the proceedings, and pumps up the cost of a divorce.
I remember when Stephanie Lee came down. Many lawyers I worked with felt a sense of freedom. No matter how you slice it, the success of any divorce agreement may depend on what court you wind up in. Some Judges in Harris County have particular standard beliefs when it comes to children. For example, if a child is younger than three years old, some Judges believe that over night visitation is not acceptable irrespective of whether the Dad has been changing diapers since birth. And practice has shown that some Judges have a bias towards gender when it comes to conservatorship.
The Texas Supreme Court’s decision in Stephanie Lee makes sense. It allows parties and their lawyers to make their own agreements about what’s best for their children. I think it’s reasonable to assume that parents are generally in the best position to do so. When they are not, there are State Agencies empowered to take over and Stephanie Lee does nothing to change the Court’s ability to act in emergency situations.