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Texas Supreme Court to decide on child custody mediation - part 2

In a continuation from last week's post we are reporting on a story involving a custody dispute between a father and mother who divorced in 2007. In 2010 the father sued the mother for primary custody of their daughter and they turned to mediation to broker a child custody agreement. The father now wants that agreement overturned. A very specific section of Texas family law dealing with child custody is being challenged in this case.

The section on child custody has two prevailing goals or policies judges must adhere to when determining custody and visitation issues:

• Any decision must always be in the best interest of the child and the "primary consideration of the court" and,

• The decision must provide a safe, stable environment without violence.

The problem is that the same section of code later states in great detail how the courts must handle agreements reached through mediation. The law states only two conditions could allow a judge to reject a mediated agreement; if one of the party's was a victim of family violence that influenced their decision on the agreement, "and if the agreement is not in the child's best interest."

The mother's attorney is arguing the word "and" in this section of the code requires that both conditions must apply for a judge to reject a mediated agreement. The girl's father previously testified that he was not a victim of family violence, thus the mother's attorney is arguing the previous judges' rulings were in violation of the law.

The attorney for the father argues that if the courts uphold the current custody agreement, the child remains in danger. Currently, the child's visitations with her mother are supervised either by the girl's father or another family member, according to attorneys.

Texas Attorney General, Greg Abbot agrees with the father and has submitted a brief stating that the legislature's intentions were quite clear in that the courts are instructed to 'always make the child's welfare the primary consideration' in any decisions.

The Texas State Bar on the other hand agrees with the mother and submitted a brief stating that if the court overturns the mediated custody agreement it could put all mediation agreements at risk in the future. The Texas Supreme Court does not have a deadline in which to make a ruling on this case.

Source: Statesman.com, "Child safety case could affect disputed Texas divorces," Chuck Lindell, May 30, 2012

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