TOOL OF THE DAY: Mediated Settlement Agreements – MSA – Best Interest is not intended to be Used to Protect Children

CATEGORY: Family Law Caselaw – Statutory

This post is about a ruling that the Texas Supreme Court made on a MSA not being approved by the trial court. However, there is some very good material in this opinion that you will want to take notice of if you are challenging “best interest.”

Trial courts throughout the United States make rulings every day to strip parents of their ability to determine what is best for their child. They do this regularly by stating that their authority resides in “the best interest of the child” statute. We disagree.

Trial courts also use the “best interest of the child” standard many times to justify temporary restraining orders, some protective orders, or to order some parents to supervised visits. We also disagree with this practice.

Every day we share with you information to help you stitch together your argument in an organized and coherent way to challenge these abuses of power.

In the following case, the Supreme Court of Texas ruled that the BIC (best interest of the child) standard cannot be used to deny the parents’ determination of what is best for their child in their mediated agreement. (We have argument to show that BIC cannot be used to deny this right to parents in disagreement as well. Stay with this post and I think you will find some really valuable insight that will help you with both arguments.) The Texas Supreme Court says:

“The trial court in this case refused to enter judgment on the parents’ MSA because the court believed the agreed arrangement was not in the child’s best interest, not because the court believed the arrangement would subject the child to neglect or abuse or would otherwise endanger the child.”

There you have it, straight from the most powerful pens in the State of Texas. The best interest standard is not the same thing as child “neglect or abuse” or “endanger[ment of] the child.” Those are different statutes with different purposes. And the BIC statute cannot be used to override the parents’ agreement.

The trial courts have numerous tools at their disposal for protecting children. Best interest standard is not one of them. Temporary restraining orders, protective orders, and referring child neglect, abuse, and endangerment to DFPS are some of them. As you can see from this next quote the Supreme Court retorts:

“While Texas trial courts have numerous tools at their disposal to safeguard children’s welfare, the Legislature has clearly directed that, subject to a very narrow exception involving family violence, denial of a motion to enter judgment on an MSA based on a best interest determination, where that MSA meets the statutory requirements of section 153.0071(d) of the Texas Family Code, is not one of those tools.”

In summary, the Texas Supreme Court has found that a trial court cannot override the parents’ determination of what is in the best interest of their child in a properly executed Mediated Settlement Agreement (MSA).

The Supreme Court further confirmed what we have been saying all along; it is the child protection statutes that protect your children. This is where you will find the definition of child abuse, neglect, and endangerment. These are found in Chapter 261 of the Texas Family Code. This is why we put this chapter in our proposed legislation, the Protecting Parent-Child Bonds bill (Download this if you wish to share with your trial court what you think should be used as proper due process safeguards and triggers in your child custody dispute between fit parents). Children’s health and safety are protected by the Child Protection codes, not the “best interest of the child” standard.

“While instigating any of the protective measures described above or elsewhere in the Family Code does not allow a trial court to conduct a broad best interest inquiry in ruling on a motion to enter judgment on an MSA under section 153.0071, it may warrant the trial court’s exercise of discretion to continue the MSA hearing for a reasonable time. This allows the trial court, upon proper motion, to render any temporary orders that might be necessary and to determine whether further protective action should be taken. In the event the trial court involves DFPS, a continuance will provide the court with the benefit of the resulting investigation.

Finally, we note that the Legislature’s choice to defer to the parties’ best interest determination in the specific context of mediation recognizes that there are safeguards inherent in that particular form of dispute resolution compared to various other methods of amicably settling disputes.[15]

Be careful with trying to use this ruling too broadly. You need to understand the argument more before you can understand how you use it in your trial court arguments if you are not arguing a MSA entry. This ruling is very narrowly tailored to the statutory language of the MSA section of the Texas Family Code. And it merely finds that the current family code does not authorize the court to use best interest as a reason to deny entering an MSA unless there is also a finding of family violence.

The Supreme Court still leaves the trial court’s authority open to use best interest of your child in any other dispute resolution method, arbitration, or litigation in front of the judge. They do not state any safeguards for your right to determine the best interest of your child in those areas. And they do not specify any triggers required before using the BIC standard in those areas either.

They only recognize the safeguards put in place when the two parents agree and follow the MSA guidelines. Still leaving parents in disagreement burdened with arguing for the proper safeguards and triggers. This doesn’t mean that you cannot argue against the trial court using the best interest standard in your situation if you are not in an MSA situation. (You can find those in our member site or general information on those throughout our blog. Search for terms like “due process” and “fundamental parental rights.”) Keep reading to learn how they reasoned through coming to their conclusion. This will help you understand how to build your argument, even one not involving an MSA. If you still have questions, come to one of our Q&A webinars. Click here to go to the webinar page and register for the next webinar coming up: WEBINAR SCHEDULE

The Supreme Court went through a multiple stage and multi-step process to determine whether the best interest standard challenge could overcome the MSA statute.

The Supreme Court of Texas reasoned as follows:

1. They checked to see whether the language in the MSA statute was clear and unambiguous. (They found it clear and supportive of the public policy of encouraging parties to come to resolution without harmful and costly litigation.)

2. They checked to see which statute was more specific.

“…the specific statutory language of section 153.0071(e) trumps section 153.002’s more general mandate.”

They supported their reasoning using other codes and caselaw as follows:

“TEX. GOV’T CODE § 311.026(b); see alsoJackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 297 (Tex.2011)(reiterating the rule that specific statutory provisions prevail over general mandates)”

2. They compared the MSA statute with the public policy of the state. (They found that the statute did not prevent the trial court from protecting children and in fact was necessary for encouraging parents to come to a peaceful resolution. They found that this allowed parents to protect their children from harmful and costly litigation.)

“The dissent claims that the Court’s holding compels trial courts to disregard the fundamental public policies of protecting children from harm and acting in their best interests. 411 S.W.3d at 486. Nothing could be further from the truth. Rather, we are respecting the Legislature’s well-supported policy determination, reflected in the plain language of the MSA statute, that courts should defer to the parties’ determinations regarding the best interest of their children when those decisions are made in the context of a statutorily compliant MSA. As discussed above, the harmful effects of litigation in family disputes are well-documented, leading the Legislature to vigorously promote the avoidance of such litigation. This is particularly so when the parties reach agreement pursuant to the mediation process, which is itself designed to ensure that children are protected. The dissent engages in a tortured reading of the MSA statute, flouts well-settled principles of statutory interpretation, and ignores the ramifications of discouraging mediation. And it does so unnecessarily, as our children’s welfare can, and indeed must, be protected at the same time that the mediation process and its benefits are preserved.”

2. They examine all of the words in the statute making sure that no words were left out or seen as surplusage. (They found that if they were to leave out that the MSA statute clearly states that the judge only gets to use best interest if they find family violence. They were careful to also explain that the judge always, even in the absence of family violence, can protect a child from harm, but that using best interest was not how they protected a child from harm.)

2. They determined what makes the MSA statute controlling by using the applicable rules of construction analysis. (The statute has the word “notwithstanding” indicating that this word played a crucial part in their determination of whether best interest would override this statute.)

This is how they reasoned through it:

“The use of the word “notwithstanding” indicates that the Legislature intended section 153.0071 to be controlling.”

They came to this conclusion by supporting their conclusion with controlling caselaw:

Molinet, 356 S.W.3d at 413-14 (holding that a “notwithstanding any other law” provision evidenced clear legislative intent to resolve any interpretation conflicts in favor of the statute containing the provision)”

3. They determined the intent of the legislators at the time the MSA statute was passed. (Stating that because they found that the arbitration statute allows the trial court to use best interest to override that ruling, that because legislators did not include the same in the MSA statute, that this was not intended.)

4. Then they determined when the statute was passed in order to decide which one is controlling (MSA or best interest) if there is a conflict. (They determined that the MSA statute was passed after the best interest statute and therefore rules.)

This was supported with citing:

“TEX. GOV’T CODE § 311.025(a); Jackson, 351 S.W.3d at 297

5. Then they examined whether following the MSA statute precludes the court from protecting children. (They found that it does not because there are other statutes that work in conjunction with the family code, Chapter 261 provides for the protection of children. They determined that the court is not precluded from using it and in fact is obligated to notify DFPS if they had knowledge that a child’s health or safety was in danger.)

BOTTOMLINE: Trial court cannot override your MSA unless there is family violence. The Best Interest of the Child standard is not what protects children. The court is not precluded from protecting a child by approving an MSA agreement. The court is required to notify the appropriate agency when they have knowledge of abuse or danger to a child.

The courts are never precluded from protecting children regardless of the circumstances of the parents, married, single, getting divorced, etc.

Funny how they will tout that mediation benefits must be preserved but mention nothing about the fundamental rights of children to be protected by both fit parents in litigation must also be preserved.


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