In the much awaited decision in the Texas child custody case of In re Stephanie Lee, the Texas Supreme Court steadfastly and emphatically supported the critical importance of mediation to protect children from the emotional and psychological damage of high conflict litigated custody battles. The Justices said Texas law gives a trial judge many opportunities in custody litigation to determine what is in the best interests of a child, but he or she does not have the power to refuse to accept parents' decisions about their child’s welfare when there was no family violence and the parents’ agreements were recorded in a valid, signed, mediated settlement agreement.
In no uncertain terms, the Texas high court made clear that custody litigation damages children, and the collaborative resolution of those issues in mediation is pivotal to children's well-being. The following quote is directly from the Texas Supreme Court opinion (footnotes omitted):
II. The Need For Mediation in High-Conflict Custody Disputes
Encouragement of mediation as an alternative form of dispute resolution is critically important to the emotional and psychological well-being of children involved in high-conflict custody disputes. Indeed, the Texas Legislature has recognized that it is “the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.” TEX. CIV. PRAC. & REM. CODE § 154.002 (emphasis in original). This policy is well-supported by . . . literature discussing the enormous emotional and financial costs of high-conflict custody litigation, including its harmful effect on children. Children involved in these disputes—tellingly, referred to as “custody battles”—can face perpetual emotional turmoil, alienation from one or both parents, and increased risk of developing psychological problems. All the while, most of these families have two adequate parents who merely act out of fear of losing their child.
For the children themselves, the conflict associated with the litigation itself is often much greater than the conflict that led to a divorce or custody dispute. The Legislature has thus recognized that, because children suffer needlessly from traditional litigation, the amicable resolution of child-related disputes should be promoted forcefully.
For these reasons, we hold that section 153.0071(e) [party entitled to judgment on an MSA that meets statutory requirements] 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. 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. The [trial court and Court of Appeals] decisions ignore clearly expressed legislative intent, undermining the Legislature’s goal of protecting children by eroding parents’ incentive to work collaboratively for their children’s welfare. This frustrates the policies underlying alternative dispute resolution in the custody context, which are firmly grounded in the protection of children.
The entire opinion can be found here.