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Tiebreakers in child custody agreements: When should you use them?

A decision-making committee of two can be a recipe for impasse and endless argument. If the two members don't agree, next steps become difficult to determine.

In a business setting, this sometimes causes partners to dissolve their partnership. In a marriage, an inability of the two parties to agree may lead to divorce.

But what about divorced parents who are raising children together? In this post, we will use a Q & A format to discuss when "tiebreakers" in divorce agreements may be used to decide which ex-parent gets to make the final decision about a particular aspect of child-raising.

What types of custody can tiebreakers be applied to?

Tiebreakers apply to a situation in which the parents have joint legal custody. Joint legal custody is not the same as joint physical custody, which refers to residence.

As defined in Alabama Code 30-3-151, joint legal custody means that "[b]oth parents have equal rights and responsibilities for major decisions concerning the child." These decisions include education, health care and religious upbringing.

In other words, even if you don't physically take care of the kids, if you have joint legal custody you still generally have an equal part in key decisions that affect the child's future.

If you and your ex don't specify who gets the tiebreaker on a particular childraising decision, it could set the stage for future litigation. After all, the fundamental disagreement about big picture areas is probably what led you to separate in the first place. And the disagreement is likely to germinate as the kids get older.

What are some of the common areas where tiebreakers may be used?

Education, religion and health care are specifically mentioned in statute as possible areas where tiebreakers may be used. Extracurricular activities and sports are others.

It is not difficult to imagine likely scenarios. A father may want his son to play football. What happens if the mother is concerned about traumatic brain injuries caused by football and doesn't want the child to play?

In this setting, a tiebreaker could be used in the divorce agreement to specify which parent gets to decide how the child will be raised in that specific area.

Similarly, in the health care setting, you and your ex could disagree on whether your child should be medicated to address issues of ADD, ADHD or some other condition. A tiebreaker could be used to decide who gets to decide this.

How can you and your ex decide on appropriate tiebreakers?

The important thing to remember is that if you can't agree, future disagreements and litigation are likely. So it is in everyone's interests. It is therefore in everyone's interests that you and your ex-spouse resolve your differences enough in order to agree on any tiebreakers that seem necessary.

Which tiebreakers may be necessary depends on your particular circumstances. A skilled attorney can guide you forward in seeking a suitable agreement. Such an agreement - one that recognizes the unique gifts and challenges of your child and his or her loving but flawed parents - is well worth working for.

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Jason J. Bonar, Attorney at Law, P.C.
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