Mediating a Divorce or Custody Case in Texas
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In a Texas divorce or custody case, a signed mediated settlement agreement can bind both spouses or parents with no right to revoke it, if it meets three requirements written into the Family Code. Those requirements are the same in a divorce under section 6.602 and in a suit affecting the parent-child relationship, the Family Code's term for the custody cases governed by its chapter on conservatorship, possession and access, under section 153.0071. This guide explains those requirements, the family violence protections, and the limited power a judge has to refuse a custody agreement.
The general mediation rules in chapter 154 of the Civil Practice and Remedies Code still apply to family cases, including confidentiality and the mediator's duties. Those are explained in how mediation works in Texas. State policy gives "special consideration" to disputes involving the parent-child relationship, including mediation of conservatorship, possession and child support (section 154.002).
How a family case is sent to mediation
In both kinds of case, the court may refer the suit to mediation "on the written agreement of the parties or on the court's own motion" (sections 6.602(a) and 153.0071(c)). The parties do not have to agree for the judge to order it.
Custody cases have one more option. On the parties' written agreement, the court may refer a suit affecting the parent-child relationship to arbitration, and the agreement must state whether the arbitration is binding or non-binding (section 153.0071(a)). If it is binding, the court renders an order reflecting the arbitrator's award unless it finds at a non-jury hearing that the award is not in the best interest of the child. The party trying to avoid the award carries the burden of proof at that hearing (section 153.0071(b)).
What makes a mediated settlement agreement binding
A mediated settlement agreement, often shortened to MSA, is binding on the parties if it does all three of these things (sections 6.602(b) and 153.0071(d)):
- It "provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation."
- It is signed by each party to the agreement.
- It is signed by each party's attorney, if the party has one who is present when the agreement is signed.
The third requirement covers only an attorney who is there at signing. If a party has no attorney, or the attorney is not present, the statute asks for no attorney signature for that party.
When an agreement meets all three, a party "is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law" (sections 6.602(c) and 153.0071(e)). That goes further than the general rule for other mediated settlements, which are enforceable as written contracts under section 154.071 of the Civil Practice and Remedies Code. In a family case, the statute goes past contract enforcement to a right to judgment.
Family violence and the right to object
Either kind of family case can be kept out of mediation because of family violence. A party may file a written objection to the referral at any time before the final mediation order.
- Divorce: the objection must be based on family violence committed against the objecting party by the other party (section 6.602(d)).
- Custody and other parent-child suits: the objection may be based on family violence by another party against the objecting party or against a child who is the subject of the suit (section 153.0071(f)). This objection does not apply to suits filed under Family Code chapter 262.
After an objection is filed, the case may not be referred to mediation unless a hearing is held at the request of the other party (in a divorce, section 6.602(d)) or of a party (in a parent-child suit, section 153.0071(f)) and the court finds that a preponderance of the evidence does not support the objection. If the court does refer the case, it must order measures to protect the physical and emotional safety of the party who objected. The order must provide that the parties not be required to have face-to-face contact and that they be placed in separate rooms during mediation.
Family Code section 71.004 defines "family violence." It covers an act by a family or household member meant to cause physical harm, bodily injury, assault or sexual assault, or a threat that reasonably puts the other member in fear of imminent harm of that kind, but not defensive measures to protect oneself. It also covers certain abuse of a child of the family or household, and dating violence.
When a court can refuse to enter a custody agreement
Even a properly signed custody MSA is not automatic in every case. Under section 153.0071(e-1), a court may decline to enter judgment on it if it makes two findings.
The first finding is one of these:
- A party to the agreement was a victim of family violence, and that impaired the party's ability to make decisions.
- The agreement would let a person live in the same household as the child, or otherwise have unsupervised access to the child, when that person is required to register under Code of Criminal Procedure chapter 62 for an offense committed at age 17 or older, or has a history or pattern of past or present physical or sexual abuse against anyone.
The second finding is that the agreement is not in the best interest of the child.
Section 6.602, the divorce provision, contains no matching subsection.
Who can mediate a parent-child dispute
A court-appointed mediator in a dispute about the parent-child relationship needs more training than the 40 classroom hours required for other cases. Section 154.052(b) adds 24 more hours covering family law, child development and family dynamics, including at least four hours of family violence dynamics training developed with a statewide family violence advocacy organization. Section 154.052(c) still lets a judge, in appropriate circumstances, choose a mediator who lacks those hours when the choice rests on that person's professional background in dispute resolution.
Confidentiality and parenting coordination
The chapter 154 confidentiality rules apply in family mediation. Section 153.0071(g) extends them to the work of a parenting coordinator and to everyone who takes part in parenting coordination. That subsection does not change anyone's duty to report child abuse or neglect under Family Code section 261.101.
What family mediation costs
Some North Texas county programs handle family cases. Tarrant County Dispute Resolution lists "Divorce, custody, and family matters" among its services, and Collin County's program lists divorce and modification, custody and paternity. Fees, eligibility limits and the programs whose costs could not be verified are set out in mediation costs and fees in North Texas.
Common questions
Can a party change their mind after signing a mediated settlement agreement in a divorce?
If the agreement carries the prominently displayed statement that it is not subject to revocation and has the required signatures, Family Code section 6.602(b) says it is binding on the parties, and section 6.602(c) entitles a party to judgment on it. Section 6.602 contains no period for revoking a qualifying agreement.
Does the judge have to approve a custody agreement reached in mediation?
A qualifying agreement entitles a party to judgment under section 153.0071(e). Section 153.0071(e-1) lets the court decline to enter judgment if it finds family violence that impaired a party's decision-making, or a household or unsupervised-access arrangement involving a registered sex offender or a person with a history of abuse, together with a finding that the agreement is not in the best interest of the child.
Do both parents have to be in the same room?
Not when a family violence objection has been filed and the court still refers the case. Sections 6.602(d) and 153.0071(f) require the order to provide that the parties not be required to have face-to-face contact and that they be placed in separate rooms.
Other guides on the disputes hub cover small claims and demand letters, and guides on settlements and tenant rights are listed in the full guide library on the home page.