Protecting Our Children

The Legacy of In re Lee.

By Justice Debra H. Lehrmann

Lehrmann Mediation

Children—our most precious treasure—are among our most vulnerable. Nothing is more important than their safety and welfare. Yet to a large degree their destinies necessarily lie in the hands of those over which they have no control. This is especially true when they get caught up in what are often tellingly referred to as custody battles.

While most parents who seek custody believe that their efforts, if successful, will further their children’s best interests, this type of litigation has enormous emotional and financial costs. Indeed, its harmful effect is well documented.1 Kids exposed to high-conflict custody cases can experience lifelong emotional turmoil, depression, financial troubles, difficulty in school, and alienation from their parents.2 Much of this suffering can be reduced or avoided because, in truth, the vast majority of such disputes arise between two adequate parents, both of whom want what is best for their children.3 These parents are frequently afraid of losing their kids to the other parent and, in reaction, escalate the conflict by attempting to demean each other.4 In turn, this negatively impacts their sons or daughters.5 Therefore, the process of litigation, by adding conflict to an already contentious situation, often causes greater trauma than the conflict that led to the underlying dispute.6 This is only compounded by the time and expense involved in litigation, which can further tax the emotional and financial resources of the families involved.7

When a custody dispute involves two adequate parents, deciding which parent is “best” is of little concern. Yet parties frequently get wrapped up in efforts to prove that one is better than the other, instead of finding a way for their children to maintain a relationship with both parents. This is where alternative dispute resolution, or ADR, can make a difference. By encouraging collaboration, the ADR process can prevent conflicts from needlessly escalating and can shift the parties’ focus from “winning” to a cooperative goal of allowing the children to continue their relationships with both parents. The process is also cheaper and faster than litigation, helping to preserve family resources and to reduce the lasting negative effects of custody battles.8

So it makes sense that family law practitioners have expressed such enthusiasm and support for ADR. While mediation was unheard of in family courts just a few decades ago, it is now the preferred form of dispute resolution in almost all family law cases.


The In re Lee Ruling Reshapes Texas Law
In 2013, the Texas Supreme Court faced a case that could have imperiled the future of ADR in family law cases. In In re Stephanie Lee, the court was tasked with determining whether trial courts have discretion to set aside mediated settlement agreements, or MSAs, on best interest grounds9 A holding that they have such discretion could have allowed judges to substitute their own judgment in place of the parents’ cooperative agreement, even where the subject child was not in danger. Importantly, the parties did not raise the issue of whether courts err by failing to enforce MSAs on endangerment grounds. The family law bar recognized the importance of this case, and in a rare move, the State Bar of Texas Family Law Council filed an amicus brief with the Supreme Court, arguing for enforcement of the Lee MSA.10 The council stressed that injecting uncertainty into the enforceability of these types of agreements would jeopardize the use of ADR in custody disputes across the board.

In Lee, a father sought modification of a preexisting order adjudicating parentage, alleging that the child’s mother had relinquished care of the child to him for at least six months and that the mother had placed the child in danger.11 Before a trial on the merits, the parties entered into a properly executed MSA modifying the 2007 order by giving the father the exclusive right to establish the child’s primary residence.12 This agreement met all statutory requirements necessary to render it binding and irrevocable.13 Although the child’s mother’s current husband was a registered sex offender, the father agreed during mediation that the mother would have periodic access to and possession of the child. Significantly, the mother agreed to an injunction that prohibited her husband from being within five miles of the child.14 To help the father enforce the location restrictions while the child was in the mother’s possession, the MSA required that the father be informed of the husband’s whereabouts and the make and model of his car.15

Although the father initially requested that an associate judge enter judgment on the MSA, his support for the agreement waned when the judge questioned him. Thereafter, the associate judge refused to enter judgment on the ground that it was not in the child’s best interest. The mother then filed a motion to enter judgment on the MSA in district court, but after a hearing on this motion, the district judge likewise refused to enter judgment, also concluding that the agreement was not in the child’s best interest.16 In spite of the injunctive language that the parties agreed upon to protect the child from potential harm, both judges were concerned about the mother’s husband’s sex-offender status.17 The mother filed a mandamus petition in the court of appeals, asking the court to order the district judge to enter judgment on the agreement.18 After the court of appeals denied mandamus relief, the mother petitioned the Texas Supreme Court, arguing that the trial court judge had abused the court’s discretion by refusing to enter judgment on the agreement based on the child’s best interest.19

The Texas Supreme Court held that section 153.0071 of the Family Code did not authorize a trial court to refuse entry of judgment on an otherwise binding MSA pursuant to a broad best-interest inquiry.20 In reaching this conclusion, the court struggled to balance two important interests: first, ensuring that the child in Lee was not placed in harm’s way and, second, encouraging the enforcement and promotion of MSAs in child-custody proceedings.

While the court emphasized that trial courts are required to take protective action when necessary, it concluded that the facts in Lee did not require such action. Rather, the issue was whether trial courts are authorized to refuse to enforce MSAs on best-interest grounds or whether an endangerment finding is required. And more pointedly: whether refusal to enter judgment is ever available as a form of protective action or whether other protective tools must be utilized. Ultimately, a majority of the court concluded: (1) a trial court abuses its discretion by refusing to enter an MSA on best-interest grounds;21 (2) protective action is required when a trial judge determines that such action is necessary to safeguard a child;22 (3) refusal to enter judgment on an MSA is an available protective tool when the child is endangered;23 and (4) the child in Lee was not endangered because the MSA expressly prohibited the mother’s husband from having any contact with the child and contained provisions to ensure enforcement of the no-contact clause.24

The court’s rejection of a broad best-interest inquiry after the parents signed an MSA in Lee makes it clear that trial courts may not substitute their own judgment for the parents’ decisions regarding how to raise their own children absent actual danger to their welfare. In the end, Lee stands for two principles: (1) the Family Code recognizes the importance of mediation in family law cases, and (2) courts must always take protective action when children are endangered. Importantly, Lee protects the Texas Legislature’s far-reaching policy consideration, as promoted by the family law bar for many years—mediation is a vital tool in family law. Its use should be encouraged and its products enforced. Because our children depend upon it.TBJ


1. See, e.g., David Mechanic & Stephen Hansell, Divorce, Family Conflict, and Adolescents’ Well-Being, 30 J. Health & Soc. Behavior 105, 105 (1989) (explaining that “[h]igher levels of family conflict were associated with increases in adolescents’ depressed mood, anxiety, and physical symptoms over time”).

2. Linda D. Elrod, Reforming the System to Protect Children in High Conflict Custody Cases, 28 W. Mitchell L. Rev. 495, 497 (2001).

3. Most divorces are not described as “high-conflict” cases. See, e.g., id. at 498 (stating that a small number of parents escalate to high-conflict methods, and citing numerous studies estimating such divorces as between 10 percent and 25 percent of divorces overall).

4. See Nancy Ver Steegh, Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process, 42 Fam. Law Quarterly 659, 659-60 (2008) (noting that 71 percent of divorcing parents reported that the “court process escalated the level of conflict and distrust ‘to a further extreme’”).

5. See, e.g., In re Stephanie Lee, 411 S.W.3d 445, 449 (Tex. 2013).

6. See Deborah A. Luepnitz, Which Aspects of Divorce Affect Children?, 28 Fam. Coordinator 79, 79 (1979) (examining a group of college students who were the children of divorced parents, with 83 percent of respondents reporting “feeling stress during at least one phase of the divorce,” and half of the sample experiencing greater stress pre-divorce and a third experiencing greater stress during or after the divorce).

7. Elizabeth Alterman, Divorce Can Cost You Over and Over, CNBC (May 4, 2011),

8. Steven Shavell, Alternative Dispute Resolution: An Economic Analysis, 24 J. Legal Stud. 1, 13 (1995).

9. 411 S.W.3d at 447.

10. Brief of the State Bar of Texas Family Law Council as Amicus Curiae at 1, In re Lee, 411 S.W.3d 445 (Tex. 2013) (No. 11-0732).

11. In re Lee, 411 S.W.3d at 447.

12. Id.

13. Id. (citing Tex. Fam. Code § 153.0071).

14. Id.

15. Id. at 447-48.

16. Id. at 448.

17. Id.

18. Id. at 449.

19. Id.

20. Id. at 458.

21. Id. at 450.

22. See id. at 458 (explaining the circumstances in which a trial court has authority to take permissive action); id. at 462 (Guzman, J., concurring) (noting that “no Justice disputes that trial courts possess a number of mechanisms to protect children from endangerment”).

23. Id. at 462 (Guzman, J., concurring); id. at 485-86 (Green, J., dissenting).

24. Id. at 461; id. at 462 (Guzman, J., concurring).

Debra Lehrmann

JUSTICE DEBRA H. LEHRMANN has served on the Texas Supreme Court since her gubernatorial appointment in June 2010. She serves as the court’s liaison to the Texas Attorney–Mediators Coalition, the Board of Disciplinary Appeals, the Commission for Lawyer Discipline, the Texas Association for Court Administration, the State Bar Family Law Section, and the Family Law Council. Having served as a trial judge in Fort Worth for 23 years prior to her appointment to the Supreme Court, she has a cumulative record of over 30 years of judicial service.

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