Custody

Mediation is a process where parents can come to an agreement about conservatorship and possession of their child without going in front of a judge. A third party, called a mediator, meets with the parents to help them get to a mutual agreement. Parents can agree to mediation or a judge can order mediation.¹

Once an agreement is reached, it will be binding on all parties if the agreement:

• has stated in boldfaced type, capital letters or underlined, that it is not “subject to revocation” (meaning it cannot be reversed or undone);
• is signed by the parties; and
• is signed by each party’s attorney (if the party has an attorney and the attorney is present when the parties sign the agreement).²

However, even if the parties agree on an order through mediation, the judge can refuse to accept the agreement if the judge believes that the agreement is not in the child’s best interest and one of the following is true:

1. one of the parties is/was victim of family violence and the judge believes that this negatively affected the victim-parent’s ability to make decisions;
2. the agreement would allow a registered sex offender (who committed a sex crime when s/he was age 17 or older) to
   • live in the same household as the child; or
   • have unsupervised access to the child; or
3. the agreement would allow someone who has a history/pattern of past or present physical abuse or sexual abuse directed against any person to:
   • live in the same household as the child; or
   • have unsupervised access to the child.³

If you are a victim of family violence, you can ask the judge not to refer the case to mediation. If the other party disagrees and wants mediation, the matter can be set down for a hearing to determine whether or not mediation is appropriate.⁴ However, unless there is extreme violence that you can prove, it can be difficult to convince a judge not to send the case to mediation. After the hearing, if the judge refers the case to mediation anyway, measures may be taken to protect the party who did not want mediation. For example, the judge may order separate rooms and no face-to-face contact during mediation.⁴ Note: Child custody mediators are required by law to receive four hours of family violence training.⁵ Before mediation begins, you may want to ask the mediator if s/he has completed the required training and bring it to the judge’s attention if the mediator has not completed this training.

¹ Tex. Fam. Code § 153.0071(c)
² Tex. Fam. Code § 153.0071(d)
³ Tex. Fam. Code § 153.0071(e-1)
⁴ Tex. Fam. Code § 153.0071(f)
⁵ Tex. Civil Practice & Remedies Code § 154.052(b)