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by Tom Noble ¹
214-692-1888
fax: 692-8577
tnoble28@hotmail.com

A newsletter for attorneys, mediators, financial planners, mental health professionals, and wisdom seekers

9.8.99

How Recent Family Law Legislation Affects Mediation
At this year’s Advanced Family Law Seminar, otherwise known as The Annual Family Law Schmoozarama , the wisest experts amongst us opined over new legislation and, like an abusive spouse, largely ignored the recent bruises suffered by mediation.

The worst of the new Family Code legislation are the amendments to §153.133 and §153.134, which deal with determining where the children will live after their parents divorce. Under the prior versions of these sections, parties agreeing to joint managing conservatorship could avoid fighting over which parent has the right to establish the primary residence of the children by designating a county where the children would reside until the next order of the court. Mediators faced with a bitter dispute over competing parenting skills settled cases by suggesting that the parties agree to designate a county of residence for the children instead of a "primary parent".

For years now the legislature has given lip service to the notion of passing legislation to take the fight out of custody fights. Family lawyers have seen a steady stream of legislation, allowing courts to impose joint m/c even in cases where the parties could not agree to it, guaranteeing rights to all parents, making it easier to modify sole m/c to joint, and, eventually, providing that joint m/c was presumptively in the best interest of all children of divorcing parents. But, these changes are largely artificial.

This pattern follows the old adage that "the big print giveth, and the small print taketh away". Even though the legislature has equalized the title of divorced parents (calling everyone a "JMC"), the Texas Family Code is still rife with language that indicates that when the smoke clears, one parent will be legally superior to the other.

The Standard Possession Order is the worst example. Even though JMC is the law of the land, the SPO speaks exclusively in terms of sole managing conservators and possessory conservators. While parents used to battle over the right to be "sole", they now battle over which one of the joint managing conservators will be "primary": the parent with "primary" possession of the children and the right to establish the "primary residence" of the children.

Judges compound this "primary parent problem" by harboring beliefs that children should only have a single primary residence (at the risk of being redundant), rather than having two residences after their parents divorce: one at Dad’s house and one at Mom’s. The primary parent problem perpetuates the "visitation syndrome" whereby parents, with the help of their lawyers, teach children that, because they have a primary residence, they simply "visit" the other parent. And, indeed, even with all of the JMC legislation, family lawyers (including a lot of judges) still talk about "visitation schedules", instead of possession orders. And, so, custody fights continue, and they will persist until the legislature and the courts allow actual co-parenting, rather than the pretend-like co-parenting we have now.

The legislature further expressed its preference for family-law-by-trial when it passed legislation that prohibits mediation in cases where one of the parties alleges and proves that family violence has occurred during the marriage. What’s wrong with that? After all, aren’t there studies that show that abused women do worse when mediating with their bully-bubba hubbies? Perhaps, but, even if you accept the conclusions of those studies, did they occur in jurisdictions like Texas where, unlike many other areas of the country, divorcing parties mediate with their attorneys, rather than attending mediation without them? Most Texas mediators employ a caucus model to mediate family law cases instead of making both spouses stay in the same room with one another for hours at a stretch.

What about cases in which a single act of family violence occurred 10 or 20 years ago? Experienced family lawyers will not use this new legislation to "protect" abused spouses. They will see it as a tactical opportunity. Abused spouses may want to mediate. They may want to get the hell out of the relationship as soon as possible, rather than waiting several months for their turn on the trial docket; they may not want to spend the money on a trial or even a hearing objecting to mediation. But, will they be assertive enough to tell their lawyers that they do not want to object to mediation? And, why do we think that these people will do better in court? There are no studies making any real comparisons between how abused spouses fare in court versus mediation, and there never will be because to conduct such studies researchers would have to find couples who get divorced both ways: first by mediation and then again, from the same spouse, in court.

Under the "old law" all litigants ordered to mediation have the right to object. That has not changed. Now some legislator has curried favor with some special interest group by creating one more opportunity for divorcing spouses to act out their adversarial tendencies rather than learning to solve their problems through cooperation and negotiation.

Evaluating Family Law Cases
"Evaluating Family Law Cases: Money, Marriage, & Kids", previously scheduled for September 22, 1999, at Belo Mansion, is now re-scheduled for September 29, 1999, at noon. Judge Craig Fowler, Leota Alexander, George McKearin, Suzanne Duvall, and I will present the findings from our poll of Texas family law judges.

Negotiation in a Nutshell
We are all negotiators. If you did not know this before having children, you learn it all too well once you confront the demands your children make. Yet, despite our living in a negotiation-pervasive society, few of us study this subject. On October 12^th from 5:00 p.m. until 9:00 p.m., at Belo, the DBA ADR Section will present Charles Guittard and Chris Noland, coaches of SMU’s championship winning negotiation team, in a skills enhancement course for lawyers.

Whether or not you can make the course, the next time you confront a negotiation, consider the following quick method of preparation, as suggested by James C. Freund, in Smart Negotiating:

• What do I want?
• Where do I start?
• When do I move?
• How do I close?