By Chuck Lindell
In a case that could have a long-term effect on disputed divorces, the Texas Supreme Court will decide whether two Houston judges, concerned that a 7-year-old girl was endangered by a sex offender, acted improperly by rejecting a child-custody agreement.
The girl’s father, Benjamin Redus, admits that he signed a binding custody agreement that normally could not be rejected.
But during a routine hearing to enter the agreement into the court record last year, Redus instead asked the judge to intervene, saying he no longer felt comfortable with a document that allowed weekend visits between his daughter and ex-wife. Explaining his change of mind, Redus said his ex-wife’s new husband, a registered sex offender, had slept “naked in bed with my daughter between them.”
Appalled, the associate judge refused to enter the agreement, leading to a hearing by state District Judge Sheri Dean, who also rejected the document, saying it was not in the girl’s best interest.
The girl’s mother, Stephanie Lee, appealed Dean’s ruling, arguing that the judge had only one option — to approve the agreement, regardless of concern for a child’s safety — because it was hammered out in a daylong session with a mediator.
State law encourages the use of mediators — producing out-of-court settlements that are cheaper, faster and less stressful for children — by giving judges little leeway to interfere afterward, Lee’s lawyer told the Supreme Court during oral arguments in February.
Siding with Redus risks upending the entire mediation system and all its benefits for families across Texas, lawyer Scott Rothenberg said.
Chief Justice Wallace Jefferson interjected: “The trial court has no discretion to disturb an agreement that is clearly not in the child’s best interest? That’s fine?”
“It is,” Rothenberg said. “The judgment is not the be-all and end-all of protecting and taking care of a child.” The Legislature gave judges little discretion on mediated settlements because other protections exist, he said, including police, Child Protective Services and emergency court orders from concerned judges.
“Yeah,” Jefferson said, “if the child survives during that time.”
Almost three years after their 2007 divorce, Redus sued Lee to change their divorce decree, giving him primary custody of their daughter.
To help reach a settlement, they turned to a mediator, a professional trained to broker agreements without taking a side or giving legal advice. Mediators are extremely common in divorce and child-custody disputes; Travis County, for example, requires mediation before a family law case can head to trial.
The Redus-Lee mediation in April 2011 ended with custody going to Redus and Lee getting one weekend visit per month at her home outside Houston, with longer visits from their daughter during the summer.
The document that Redus and Lee signed said, in bold, all-capital letters: “The parties also agree that this mediation agreement is binding on both of them and is not subject to revocation by either of them.”
Only three weeks later, Redus asked an associate district judge to let him back out of the deal, alleging that Stephanie Lee’s new husband, Scott Allen Lee, slept naked with his daughter present in the same bed.
Redus did not elaborate on his accusation, and lawyers did not request additional details, but the information led Associate Judge Charley Prine Jr. to refuse to enter the agreement into the court record. “Ain’t going to happen on my watch,” Prine said.
The next step was a hearing last July before Dean, a first-term Republican district judge who had spent 18 years as a family law attorney, including 13 years as a mediator.
On the stand, Stephanie Lee said she knew that Scott Lee was a registered sex offender when they began dating in 2005 and that despite a probation condition that did not allow contact with children, she had let him stay at her house while her daughter was present.
According to the Department of Public Safety, Scott Lee was placed on 10 years of deferred adjudication, a form of probation, in 2001 for indecency with a child by sexual contact; the victim was an 11-year-old girl.
Rothenberg, Stephanie Lee’s lawyer, said there should be no concern for the child’s safety because the visitation agreement required Scott Lee to stay at least five miles away from the girl. Scott Lee also must provide the address and phone number of where he would be staying during the girl’s visits. Redus, who lives in Central Texas, may check on his whereabouts “at reasonable times,” the agreement states.
Redus acknowledged that he knew Scott Lee was a registered sex offender when he signed the mediated agreement but testified that he changed his mind after learning that Lee had completed his probation, removing the restriction on contact with children. For reasons not explained in the court record, Redus did not repeat the naked-sleeping accusation.
At the hearing’s close, Dean ruled that the mediated agreement was not in the child’s best interest and set the matter for trial.
Before that could happen, Lee filed her appeal.
Interpreting the laws
The outcome of the case will probably depend on how the Supreme Court interprets conflicting portions of the Texas Family Code.
The section on child custody begins by stating two overriding policy goals:
■ Always make the best interest of each child “the primary consideration of the court.”
■ Provide a safe, stable and nonviolent environment for each child.
But the same section of the law later provides detailed instruction on how courts must handle mediated settlements. The code lays out only two conditions allowing a judge to reject such an agreement: when one party was the victim of family violence that affected their decision, “and if the agreement is not in the child’s best interest.”
The wording is key, Rothenberg told the Supreme Court. By using the word “and,” the Legislature protected mediated agreements by requiring both standards to be met before a judge could reject a settlement.
Because Redus testified that he was not the victim of family violence, worries about the child’s welfare were not enough to allow a judge to reject the agreement, Rothenberg said.
He warned that few people would bother with mediation if judges could order a days- or weeks-long trial on the merits of a settlement when one side gets buyer’s remorse, he said.
But Clint Lawson, a lawyer for Redus, said that in 16 years of practicing family law, he found ill-advised mediated agreements to be “few and seldom.” Preserving a court’s power to protect children from unsafe environments would uphold the law and have a minimal impact on the legal system, he said.
“The reality is that if (Redus loses), we still have a mediated agreement that places the child in danger,” Lawson said.
(Without a custody agreement, the girl has been living with Redus. Her visits with Lee are supervised by Redus or another relative, the lawyers said.)
Attorney General Greg Abbott has sided with Redus, submitting a brief saying that the Legislature made its intentions clear when it instructed courts to always make a child’s welfare the primary consideration.
But the State Bar of Texas’ family law section, representing 5,300 family law practitioners, sided with Lee, submitting a brief arguing that it would be short-sighted to risk the future of mediations by allowing parents to back out of settlements by making vague claims about a child’s well-being.
The court has no deadline on when to issue a ruling.
Contact Chuck Lindell at 912-2569