Family Code § 153.007 Requires Trial-Court Best-Interest Approval | Cortez v. Cortez (2026)

David Cortez v. Alicia Cortez, 04-25-00676-CV, July 29, 2026.

On appeal from 438th Judicial District Court, Bexar County, Texas

Synopsis

An appellate court cannot render an agreed judgment adopting a parenting plan that addresses conservatorship, possession, or child support unless the trial court first approves the plan under Texas Family Code § 153.007 based on a best-interest finding. When the parties settle during appeal but that statutory finding has not yet been made, Texas Rule of Appellate Procedure 42.1(a)(2)(B) permits the court of appeals to vacate and remand rather than render.

Relevance to Family Law

This decision matters directly to Texas divorce and SAPCR practice because it confirms a procedural limit that often becomes important after mediation, default-judgment appeals, and post-judgment settlements involving children. If the parties resolve an appeal with an agreement that reshapes conservatorship, possession, access, or support, appellate counsel cannot simply ask the court of appeals to render the deal as a final judgment; the agreement must go back to the trial court for the best-interest approval that § 153.007 requires. For family-law litigators, the case is a useful reminder that settlement structure, appellate motion practice, and trial-court re-entry strategy must all account for the trial court’s nondelegable best-interest role.

Case Summary

Fact Summary

The appeal arose from a default divorce decree entered by the 438th Judicial District Court in Bexar County. While the appeal was pending, David Cortez and Alicia Cortez mediated the case and reached a settlement. They then filed a joint motion in the Fourth Court of Appeals asking the court both to render judgment in accordance with their agreement and to dismiss the appeal.

The settlement was not limited to property or purely ministerial matters. It included conservatorship provisions, child-support findings, and an agreed parenting plan. That detail drove the court’s analysis. Because the agreement implicated rights and duties concerning a child, Texas Family Code § 153.007 required trial-court approval based on a finding that the parenting plan was in the child’s best interest. The appellate court therefore had to decide whether it could render the agreed judgment itself, or whether the absence of that fact finding required remand.

Issues Decided

• Whether a court of appeals may render an agreed judgment adopting a mediated parenting plan involving conservatorship, possession, or child support without the trial court first making the best-interest approval required by Texas Family Code § 153.007.
• Whether Texas Rule of Appellate Procedure 42.1(a)(2)(B) authorizes the appellate court to vacate the judgment and remand the case for rendition of judgment consistent with the parties’ agreement when necessary best-interest findings remain to be made.

Rules Applied

The court relied principally on Texas Family Code § 153.007, which allows parties to submit a written agreed parenting plan but requires trial-court approval upon a finding that the plan is in the child’s best interest. The opinion tied that requirement to the broader Family Code principle that the child’s best interest is the primary consideration in determining conservatorship and possession issues.

The court also applied Texas Rule of Appellate Procedure 42.1(a)(2)(B), which permits an appellate court, by agreement of the parties, to set aside the trial court’s judgment without regard to the merits and remand the case to the trial court for rendition of judgment in accordance with the agreement.

In support of those principles, the court cited:

• In re Villanueva, 292 S.W.3d 236, 239 (Tex. App.—Texarkana 2009, orig. proceeding), for the proposition that although the Family Code permits an agreed parenting plan, the plan still must be approved by the trial court.
• Van Heerden v. Van Heerden, 321 S.W.3d 869, 874 (Tex. App.—San Antonio 2010, no pet.), for the proposition that appellate courts are not fact-finding courts, even though they may remand when additional fact finding is necessary.

Application

The court’s reasoning was straightforward and important. The parties asked the Fourth Court to do two things at once: render judgment on their mediated agreement and dispose of the appeal. That request might be routine in a civil appeal involving only claims between adults. But here, the proposed agreed judgment included a parenting plan and child-related provisions that triggered § 153.007. Under that statute, the operative question was not merely whether the parties agreed, but whether the trial court approved the agreement as serving the child’s best interest.

That approval had not yet occurred. And because the required best-interest determination is a factual one, the court of appeals could not make it in the first instance. The panel emphasized the familiar appellate limitation that courts of appeals may review facts but do not function as original fact finders. Once the court identified that missing factual predicate, rendition became unavailable.

The court then turned to the proper procedural mechanism. Rather than deny relief altogether, it used Rule 42.1(a)(2)(B) to set aside the existing judgment without regard to the merits and remand the case to the trial court. That remand was specifically for rendition of a judgment consistent with the parties’ agreement, but only after and subject to the trial court’s approval of the parenting plan based on best-interest findings. In other words, the settlement could still be implemented, but only through the court that had statutory authority to make the necessary child-centered determination.

Holding

The court held that an appellate court may not render an agreed judgment adopting a parenting plan that addresses conservatorship, possession, or child support when the trial court has not yet approved the plan under Texas Family Code § 153.007 based on a best-interest finding. Party agreement alone is insufficient where the Family Code requires judicial approval tied to the child’s best interest.

The court further held that Texas Rule of Appellate Procedure 42.1(a)(2)(B) authorizes the proper appellate disposition in that circumstance: the appellate court may vacate or set aside the trial court’s judgment without regard to the merits and remand the case for rendition of judgment consistent with the parties’ agreement, subject to the trial court’s required best-interest findings. Accordingly, the Fourth Court vacated the judgment and remanded.

Practical Application

For appellate and trial lawyers handling family cases, Cortez is a useful roadmap for post-judgment settlement procedure. The case confirms that when an appeal settles and the agreement touches conservatorship, possession, access, or support, counsel should not assume the court of appeals can finalize everything by rendition. Instead, counsel should frame the requested relief around vacatur and remand so the trial court can conduct whatever hearing or review is necessary to approve the parenting plan under § 153.007.

This is especially important in at least four recurring settings:

• default-divorce appeals where the appellee and appellant later mediate a complete resolution;
• appeals from final decrees where the parties decide to replace contested child-related provisions with an agreed framework;
• hybrid settlements involving both property terms and child-related terms, where some aspects may be immediately agreed but the child provisions still require trial-court approval;
• time-sensitive settlement practice where parties want appellate finality but must preserve statutory compliance.

Strategically, practitioners should separate what the appellate court can do from what only the trial court can do. The court of appeals can facilitate the agreed disposition procedurally by setting aside the appealed judgment and remanding. The trial court must then perform the substantive gatekeeping function the Family Code assigns to it. If counsel ignores that division and seeks direct rendition of a child-related agreement, the result will likely be delay, re-briefing, or corrective motion practice.

The decision also has drafting implications. Settlement agreements reached during appeal should expressly acknowledge that any parenting-plan provisions are contingent on trial-court approval under § 153.007. That language protects enforceability, manages client expectations, and aligns the agreement with the limited authority of the appellate court. It also helps avoid the argument that the entire settlement fails if the trial court requests modifications to satisfy best-interest concerns.

Finally, Cortez reinforces a larger appellate point family lawyers sometimes confront too late: do not treat agreed appellate dispositions in family cases as interchangeable with agreed dispositions in ordinary civil cases. Whenever the relief involves a child, statutory best-interest findings may constrain the form of appellate judgment even when there is no live controversy between the parents.

Checklists

Drafting a Settlement During Appeal

• Confirm whether the agreement includes conservatorship, possession, access, child support, or an agreed parenting plan.
• If it does, cite Texas Family Code § 153.007 in the settlement documents and acknowledge that trial-court approval is required.
• State expressly that child-related provisions are subject to the trial court’s best-interest finding.
• Separate property-only terms from child-related terms where possible for clarity.
• Avoid promising clients that the court of appeals can simply “sign off” on the parenting plan.

Preparing the Appellate Motion

• Do not request pure rendition of an agreed parenting plan without addressing § 153.007.
• Ask the appellate court to set aside or vacate the existing judgment and remand under Texas Rule of Appellate Procedure 42.1(a)(2)(B).
• Explain that remand is necessary because the trial court must make the best-interest finding in the first instance.
• Support the motion with authorities such as In re Villanueva and Van Heerden.
• Make clear that the requested remand is for rendition of judgment consistent with the parties’ agreement, subject to required findings.

Preparing for Trial-Court Approval on Remand

• Set a prompt hearing or submission procedure for approval of the parenting plan.
• Present the mediated agreement and a proposed decree that tracks it precisely.
• Be prepared to offer evidence or at least a record supporting the child’s best interest if the court requests it.
• Ensure the proposed judgment contains the findings necessary to reflect § 153.007 compliance.
• Anticipate possible judicial concern over support, possession schedules, decision-making rights, or geographic restrictions.

Avoiding Enforcement and Finality Problems

• Do not assume the mediated settlement alone is the final operative order governing the child.
• Make sure the remand order and final decree align on all substantive points.
• Include fallback language in the agreement addressing what happens if the trial court requests modifications for best-interest reasons.
• Verify that support provisions comply not only with agreement terms but also with statutory requirements.
• Confirm that the final post-remand judgment clearly supersedes the prior appealed decree.

Counseling the Client

• Explain that settlement does not eliminate the court’s independent role in child-related issues.
• Advise that additional time may be required even after a successful appellate mediation.
• Distinguish between adult-controlled property settlement terms and child-related terms that require judicial approval.
• Warn against making logistical or financial assumptions before the remand judgment is signed.
• Document the client’s understanding that the best-interest finding cannot be bypassed by agreement.

Citation

Cortez v. Cortez, No. 04-25-00676-CV, 2026 WL ___ (Tex. App.—San Antonio July 29, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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