If you’re separated and trying to work out how you will make decisions for the children going forward, it’s quite possible that you have encountered the term, “tie-breaker authority,” aka “tie-breaking authority.”
Tie-breaker authority comes into play when “legal custody,” as opposed to physical or residential custody, is the topic at hand. Physical, or residential custody, defines which parent will be responsible for the children in terms of physical location and daily needs. Legal custody defines which parent has the authority to make decisions for the benefit of the children at any given moment in time. Generally, legal custody falls into four basic areas: physical health, education, religion and general welfare. Sometimes these four general categories are broken down further, and other areas for decision-making are specified. This might occur if, for example, if one child has a history of mental health issues. A fifth area for legal custody might then be specified with respect to this child.
When special categories and limitations on decision-making are created in Parenting Plans, Agreements and Court Orders, this is usually because either the children have specific needs or one parent has exhibited either particular good, or particularly bad, judgement with respect to a particular area of decision-making.
Sometimes legal custody – just like physical or residential custody – can be split among the children such that one parent has the authority to make decisions for one child but not another. Or one parent may be given the authority to make decisions pertaining to religion, for example, while the other parent has decision-making authority as to the other areas. Creating special rules and exceptions within the broad topic of legal custody can be a way to permit both parents to have some area of authority with respect to decisions.
An award of tie-breaker authority is another way option that is sometimes employed when legal custody or decision-making is agreed upon, or determined by the court, to be joint, aka shared equally, in the four basic areas, ie. physical health, education, religion, general welfare. The tie-breaker authority is then given to one parent and permits that parent to make sole decisions under particular circumstances.
Frequently, a Parenting Plan, Agreement or Court Order requires both co-parents to participate in mediation or parenting coordination for a specified period of time - such as two hours or two sessions - when co-parents cannot agree on a decision. If, at the conclusion of the specified period of time or sessions, the co-parents are still not able to reach agreement and make a joint decision regarding a particular issue, the parent with the tie-breaker authority can then make the decision solely.
The problem with tie-breaker authority is that it essentially makes the two hours or sessions of mediation or parenting coordination a mere formality. The parent who has tie-breaker authority need only show up and continue to disagree. Then, once that parent has put in the two hours of sessions of open disagreement with the other co-parent, the parent with tie-breaker authority gets to implement his/her preferred pathway on the issue. In my view, an award of sole legal custody on the issue would be more honest and kinder to the wallets of the two co-parents. Both co-parents wind up resentful about having to spend the two hours or sessions arguing in front of the mediator or parenting coordinator in order for the decision to be made. This creates unnecessary conflict and is contrary to the number one goal of parenting coordination: conflict reduction. The only silver lining after all is said and done, and the tie-breaker has been exercised, is that the decision on the issue is still made by one of the parents.