Texas Family Law Mediations: Court Approval of Agreements

One of the issues that inevitably comes up in Texas Family Mediations, especially when the parties are trying to creatively resolve their dispute by coming up with a custom made possession order for the child, is the question of whether the judge will approve the mediated agreement once it is presented to the court to be fashioned into a court order. 

It would seem to be a fundmental right for two parents to come up with a parenting plan for their child.  However, in Texas, this is not the case.  The parties, even if they are in full agreement with how the child will be parented, must present their plan to the judge for his or her approval.  This is because it has been the practice of some family law judges to take a heavy handed approach of setting aside agreements of parents because, in the judge’s own opinion, the agreement  is not in the child’s best interest.    The judge’s assumption of this sweeping power is based on case law and the long standing tradition of judges.

However a 2005 amendment to Texas Family Code 153.0071, the statute governing alternative dispute resolution procedures in family law cases, adds a new requirement that effectively takes the sweeping power away from judges to override the judgement of parents.  In the the old statute, a court could decline to enter a judgement on a mediated settlement agreement regarding the conservatorship of a child if the court found “the agreement is not in the child’s best interest”.   In 2005, subsection (e-1) was added which strictly limited this right of the judge.  Now for a Court to disapprove a properly executed and submitted mediated settlement agreement, not only must the court find that the plan is not in the child’s best interest, but also it must find that a party to the agreement was a victim of domestic violence and was too impaired by that to make a good decision.  In essence, the legislature has taken away the power of judges to override the wishes of parents to decide at mediation what is in the child’s best interest.  The only time the court may not render an order based on a mediated settlement agreement is in the very narrow situation when one of the parents is (a) a victim of domestic violence and (b) that past domestic violence has caused the person to psychologically not be able to make decisions that are in a child’s best interest.

There are several outstanding questions that need to be answered in how this new provision of the ADR procedure statute will be applied.  For example, does the domestic violence referred to have to stem from the specific relationship or facts surrounding the present case, or does any past domestic violence count?  What if the domestic violence occurred years ago?  What if the domestic violence was from a former relationship that has no connection with the present case? 

Despite these and other unanswered questions, this newly revised statute is a long step in the right direction for Texas Family Law.  It has firmly placed the power of parents to enter into written agreements about their children without unnecessary influence of the courts.  For parents going through a divorce or other suits affecting the parent-child relationship, they have the freedom to fashion their parenting plans according to their wishes, and with minimal interference from an impersonal court.  For Texas family law mediators and family law attorneys, this means that they have the freedom to help the parties fashion a binding parenting plan with as much customization as is necessary for the personal situation of the parties.  No longer will it be necessary to worry about creative solutions for custody and possession going outside of the comfort zone of judges who are afraid to approve any parenting plan that is not cookie-cutter.  In today’s age of mixed and blended families, non-traditional families and families separated by long distances, this flexibility is absolutely essential for parties to peaceably resolve their issues regarding their children.

Texas Family Code Sec. 153.0071 as amended states in part:

“…(d) A mediated settlement agreement is binding on the parties if the agreement: (1) provides in prominently displayed statement that is in boldfaced type or capital letters or underlined that the agreement is not subject to revocation; (2) is signed by each party to the agreement; and (3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed.

(e) If the mediated settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or any other rule of law.

(e-1) Notwithstanding Subsections (d) and (e), a court may decline to enter a judgment on a mediated settlement agreement if the court finds that: (1) a party to the agreement was victim of family violence, and that circumstance impaired the party’s ability to make decisions; and (2) the agreement is not in the child’s best interest.” (emphasis added).

Protection from Discovery In Family Law Cases

A person from whom discovery is sought, and any other person affected by the discovery , may move for an order protecting the person from such discovery.  The motion must be brought within the time for response to the subject discovery.  A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion does not waive the objection or assertion of privilege. 

If a person seeks protection regarting the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply.

A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstance to do so before obtaining a ruling on the motion.  (TRCP 192.6).

Order

To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional , or property rights, the court may make any order in the interest of justice that either vacates the request in whole or in part, limits the extent or subject matter of the discovery sought, set the terms or conditions of the methods of getting the discovery, and/or sealing or otherwise protecting the discovery from the public.  (TRCP 192.6(b)). 

What Discovery Must Be Filed With The Court In Texas Family Law Case?

The following discovery materials must be filed with the court: (1) discovery requests, deposition notices, and subpoenas required to be served on nonparties; (2) motions and responses to motions pertaining to discovery matters; and (3) agreements concerning discovery matters, to the extend necessary to comply with rule 11. (TRCP 191.4(b)).

Signatures Required For Discovery In Texas Family Law Cases

The Texas Rules of Civil Procedure 191.3(a) says that if a party is represented by an attorney in a Texas Family Law case, then every request for discovery, every disclosure, every objection, response and notice must include the attorney’s signature.  It must also include his or her Texas State Bar number, his or her address, phone number and fax number.

If the party is pro se, it must include the party’s signaure, address, and telephone number and fax number (if any). 

The Effect of the Signature 

The signature on a disclosure certifies that, to the best of the signer’s knowledge, information, and belief, which was formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.  (TRCP 191.3(b)).  The signature on discovery request, notice response or objection certifies that, to the best of the signer’s knowledge, information and belief, which was formed after a reasonable inquiry, (1) the item is consistent with the rules and warranted by existing law or good-faith argument for the extension, modifiction , or reversal of existing law; (2) has a good faith factual basis; (3) is not interposed for an improper purpose; and (4) is not unreasonable or unduly burdensome or expensive. (TRCP 191.3(c)).

Effect of Failure to Sign 

If a request, notice, response, or objection is not signed, it must be stricken unless it is signed promptly after the omission is called to the attention of the party.  A party is not required to take any action with respect to a request or notice that is not signed. (TRCP 191.3(d)).

Sanctions 

If the certification is false, without substantial justification, the court may, upon motion or its own initiative, impose on the person who made the certification, or the party on whose behalf the request, notice, response, or objection was made, or both, an appropriate sanction as for a frivolous pleading or motion. 

Certificates For Discovery Motions In Texas Family Law Cases

Cooperation in discovery is expected from parties and their attorneys in family law cases in Texas.  They should make any reasonable agreements necessary to quickly end the divorce or other family law matter. 

 Any party filing a motion or request for hearing on a discovery must include a certificate in their filing that states that a reasonable effort has been made to resolve the discovery dispute prior to involvement of the court, but that effort failed. (Texas Rules of Civil Procedure 191.2).

Even without a certificate, a court may hear a motion or request.

The failure of a court to require a certificate of conference cannot justify mandamus relief.  Tjernagel v. Roberts, 928 S.W. 2d 297, 300-01 (Tex. App– Amarillo 1996, orig. proceeding).

Modification of Texas Discovery Procedures

Except where specifically prohibited, the parties may modifiy the procedures and limitations of the discovery rules by agreement.  An agreement of the parties is enforceable if it complies with rule 11 or, as it affects an oral deposition, if it its made a part of the deposition record.  The procedures and limitations may also be modified by court order for good cause.  TRCP 191.11.

No Man of The House Becomes The Norm

From the New York Times today:

For what experts say is probably the first time, more American women are living without a husband than with one, according to a New York Times analysis of census results.

In 2005, 51 percent of women said they were living without a spouse, up from 35 percent in 1950 and 49 percent in 2000.

Coupled with the fact that in 2005 married couples became a minority of all American households for the first time, the trend could ultimately shape social and workplace policies, including the ways government and employers distribute benefits.

Several factors are driving the statistical shift. At one end of the age spectrum, women are marrying later or living with unmarried partners more often and for longer periods. At the other end, women are living longer as widows and, after a divorce, are more likely than men to delay remarriage, sometimes delighting in their newfound freedom.

In addition, marriage rates among black women remain low. Only about 30 percent of black women are living with a spouse, according to the Census Bureau, compared with about 49 percent of Hispanic women, 55 percent of non-Hispanic white women and more than 60 percent of Asian women.

In a relatively small number of cases, the living arrangement is temporary, because the husbands are working out of town, are in the military or are institutionalized. But while most women eventually marry, the larger trend is unmistakable.

“This is yet another of the inexorable signs that there is no going back to a world where we can assume that marriage is the main institution that organizes people’s lives,” said Prof. Stephanie Coontz, director of public education for the Council on Contemporary Families, a nonprofit research group. “Most of these women will marry, or have married. But on average, Americans now spend half their adult lives outside marriage.”

Professor Coontz said this was probably unprecedented with the possible exception of major wartime mobilizations and when black couples were separated during slavery.

William H. Frey, a demographer with the Brookings Institution, a research group in Washington, described the shift as “a clear tipping point, reflecting the culmination of post-1960 trends associated with greater independence and more flexible lifestyles for women.”

“For better or worse, women are less dependent on men or the institution of marriage,” Dr. Frey said. “Younger women understand this better, and are preparing to live longer parts of their lives alone or with nonmarried partners. For many older boomer and senior women, the institution of marriage did not hold the promise they might have hoped for, growing up in an ‘Ozzie and Harriet’ era.”

Emily Zuzik, a 32-year-old musician and model who lives in the East Village of Manhattan, said she was not surprised by the trend.

“A lot of my friends are divorced or single or living alone,” Ms. Zuzik said. “I know a lot of people in their 30s who have roommates.”

Ms. Zuzik has lived with a boyfriend twice, once in California where the couple registered as domestic partners to qualify for his health insurance plan. “I don’t plan to live with anyone else again until I am married,” she said, “and I may opt to keep a place of my own even then.”

Linda Barth, a 56-year-old magazine editor in Houston who has never married, said, “I used to divide my women friends into single friends and married friends. Now that doesn’t seem to be an issue.”

Sheila Jamison, who also lives in the East Village and works for a media company, is 45 and single. She says her family believes she would have had a better chance of finding a husband had she attended a historically black college instead of Duke.

“Considering all the weddings I attended in the ’80s that have ended so very, very badly, I consider myself straight up lucky,” Ms. Jamison said. “I have not sworn off marriage, but if I do wed, it will be to have a companion with whom I can travel and play parlor games in my old age.”

Carol Crenshaw, 57, of Roswell, Ga., was divorced in 2005 after 33 years and says she is in no hurry to marry again.

“I’m in a place in my life where I’m comfortable,” said Ms. Crenshaw, who has two grown sons. “I can do what I want, when I want, with whom I want. I was a wife and a mother. I don’t feel like I need to do that again.”

Similarly, Shelley Fidler, 59, a public policy adviser at a law firm, has sworn off marriage. She moved from rural Virginia to the vibrant Adams Morgan neighborhood of Washington, D.C., when her 30-year marriage ended.

“The benefits were completely unforeseen for me,” Ms. Fidler said, “the free time, the amount of time I get to spend with friends, the time I have alone, which I value tremendously, the flexibility in terms of work, travel and cultural events.”

Among the more than 117 million women over the age of 15, according to the marital status category in the Census Bureau’s latest American Community Survey, 63 million are married. Of those, 3.1 million are legally separated and 2.4 million said their husbands were not living at home for one reason or another.

That brings the number of American women actually living with a spouse to 57.5 million, compared with the 59.9 million who are single or whose husbands were not living at home when the survey was taken in 2005.

Some of those situations, which the census identifies as “spouse absent” and “other,” are temporary, and, of course, even some people who describe themselves as separated eventually reunite with their spouses.

Over all, a larger share of men are married and living with their spouse — about 53 percent compared with 49 percent among women.

“Since women continue to outlive men, they have reached the nonmarital tipping point — more nonmarried than married,” Dr. Frey said. “This suggests that most girls growing up today can look forward to spending more of their lives outside of a traditional marriage.”

Pamela J. Smock, a researcher at the University of Michigan Population Studies Center, agreed, saying that “changing patterns of courtship, marriage, and that we are living longer lives all play a role.”

“Men also remarry more quickly than women after a divorce,” Ms. Smock added, “and both are increasingly likely to cohabit rather than remarry after a divorce.”

The proportion of married people, especially among younger age groups, has been declining for decades. Between 1950 and 2000, the share of women 15-to-24 who were married plummeted to 16 percent, from 42 percent. Among 25-to-34-year-olds, the proportion dropped to 58 percent, from 82 percent.

“Although we can help people ‘do’ marriage better, it is simply delusional to construct social policy or make personal life decisions on the basis that you can count on people spending most of their adult lives in marriage,” said Professor Coontz, the author of “Marriage, a History: How Love Conquered Marriage.”

Besse Gardner, 24, said she and her boyfriend met as college freshmen and started living together last April “for all the wrong reasons” — they found a great apartment on the beach in Los Angeles.

“We do not see living together as an end or even for the rest of our lives — it’s just fun right now,” Ms. Gardner said. “My roommate is someone I’d be thrilled to marry one day, but it just doesn’t make sense right now.”

Ms. Crenshaw said that some of the women in her support group for divorced women were miserable, but that she was surprised how happy she was to be single again.

“That’s not how I grew up,” she said. “That’s not how society thinks. It’s a marriage culture.”

Elissa B. Terris, 59, of Marietta, Ga., divorced in 2005 after being married for 34 years and raising a daughter, who is now an adult.

“A gentleman asked me to marry him and I said no,” she recalled. “I told him, ‘I’m just beginning to fly again, I’m just beginning to be me. Don’t take that away.’ ”

“Marriage kind of aged me because there weren’t options,” Ms. Terris said. “There was only one way to go. Now I have choices. One night I slept on the other side of the bed, and I thought, I like this side.”

She said she was returning to college to get a master’s degree (her former husband “didn’t want me to do that because I was more educated than he was”), had taken photography classes and was auditioning for a play.

“Once you go through something you think will kill you and it doesn’t,” she said, “every day is like a present.”

Contacting an Assistant Attorney General

It is not always posible to just call the AAG and “cut a deal” assuming you can even reach him or her by phone.  Chapter 402 of the Government Code requires the OAG to provide each party or party’s attorney of record with written notice of the name, phone number, and fax number of the AAG who is the attorney of record in any case (and to supplement the information when changes occur).  In the meantime, it is a good idea to keep a list of the direct extensions for the Assistant Attorney General’s in the offices in your area.  Most AAGs will provide their direct lines to attorneys upon request.  If you can’t get through by phone, send a fax instead, asking the AAG to call you.  Include a message about which case you wish to discuss.  This will enable the AAG to find the file and review it (probably for the first time) and have some knowledge of the circumstances of the particular case before she calles you back.

Hiring Private Investigators In Your Texas Family Law Case

Certain Texas divorces or Texas family benefit from the use of a private investigator.  Investigators can be very helpful in obtaining documentation regarding lifestyle, assets, income, roomates, friends, paramour and parent s including their criminal history, work history, demonstrating hidden affluence, locating and interviewing witnessess, and obtaining information regarding abuse or neglect.

The best way to select and hire an investigator is to find someone referred to you by a lawyer.  A next best way would be to simply look in they yellow pages- these investigators typically do more family work.  At a minimum,  the investigator should have a Class A (investigatons only) or a Class C (investigations or security) license from the Texas Department of Public Safety- Private Security Board.   Beyond that, there are several advanced certifications which may distinguish one investigator from another such as the designation of Texas Certified Investigators (TCI) or the national designation of Professional Licensed Investigator (PLI) or Certified Legal Investigator (CLI).

 When hiring a private investigator, costs are always a consideration.  Costs for a private investigator in Texas varies widely across the state.  Rates can range from $35 to $150 per hour.   A recent survey of the Texas Association of Licensed Investigators found that the average hourly rate of approximately $85.00 per hour with mileage rates at $0.40 per mile.  you have the right to a written contract at the time you are contracting the service.   The average for an infidelity surveillance will typically run about $3500 to have a real chance of likely success.

In every Texas family law case, be it divorce or a suit affecting the parent-child relationship, there a issues of both law and fact.  In cases where it is called for and a private investigator is employed, then the facts become clearer.  And everyone wants the the outcome of their case dependent on solid, verifyable facts, as opposed to the vague and uncertain outcome that is dependant on your attorneys’ art of persuasion.  Even the greatest attorney in the world wants facts on their side and hiring a private investigator may be the best way to get those facts brought to light.