What does “Tie Breaker” mean when it comes to Joint Legal Custody?
by Thomas Mulinazzi
An old friend called yesterday and asked me, “What does it mean if I have the tie breaker authority?” He said he did a Google search for the “best divorce attorney in Howard County” and my name popped up. He figured why not give me a call since we hadn’t connected in awhile (more years than I want to admit). He explained that a Judge recently awarded him the “tie breaker” authority but gave him and his ex joint legal custody. He wanted to know what that actually means in real life.
He also jokingly asked me how does one become the “best divorce attorney in Howard County?” I told him that Mulinazzi Law Office had won this award from the Howard Magazine three of the last four years but that the most important thing is to provide excellent customer service which includes answering random calls from old friends and helping them out – we agree that the call could be a “win-win” for both of us.
When it came to his custody question, I started by telling him that Legal Custody is the authority to make the big decisions in his son’s life. The Courts usually recognize this to mean decisions about education, medical treatment, religious training, and extra-curricular activities. This does not mean day-to-day decisions like what doe she eat, wear, who does he play with, or what time he goes to bed (unless those decisions are relevant to medical treatment or a religious ritual).
I gave him a couple of examples. When/if his son needs special/GT education, tutoring, IEP or 504 Plan, special classes, or there is a question about public versus private schooling then the parent with the legal custody authority would make the decision. Another example is whether or not his son would get surgery. Some surgeries are elective and preventative like a tonsillectomy or removing wisdom teeth; whereas, other surgeries are recommended to speed up healing but not quite medically necessary. Recently more and more parents are deciding not to let their children play football or other sports that expose the child to risk of CTE. I noted that decisions regarding schools and activities sometimes simply come down to finances and that there is nothing wrong with saying “no” because those things are not a financial priority.
In his situation the Judge ordered him to pay 70% of the cost for these extras and his ex was to pay 30%. He was worried that she would advocate for putting their son in expensive activities or camps since she didn’t have to pay much for it. I reminded him that she only earns 30% of the total income (which is why the cost was split that way) and therefore 30% is equally burdensome for her as the 70% cost is for him. Still, I warned him to be careful about setting a precedent of enrolling his son in very expensive sports (e.g. hockey or travel soccer) because it is likely that his son will never want to stop playing and sometimes each parent doesn’t want to be the “bad guy” who requires the child to stop the sport that s/he loves.
After all, parents who are together have a difficult time making these decisions. So when parents are not together and have an acrimonious relationship, this makes co-parenting and joint decision making that much harder. I explained that usually there is a specialist adding her recommendation (a teacher, coach, pastor, dentist, etc.) and that parents usually follow that recommendation but the ultimate decision is up to the parent with legal custody.
Technically and in the eyes of the Court, Joint Legal Custody with one parent having the “tie breaker” is the same as pure joint legal custody. However, when there is a deadlock the parent with the authority can break the deadlock and make the decision. It is important to do that the right way. With that said I told him that if he has the “tie breaker” authority he has a duty to ask his ex what she thinks about the issue, they should try to have a legitimate discussion, he should listen to her opinion and ask her the reasons for her opinion. He should consider her reasons and hopefully they will agree because that is always best for his son. I suggested that he put all of this into an email so he would (and I would) have it for later if things went bad. But if he does all of that in good faith, he may decide to exercise his “tie breaker” authority and make a decision that he feels is in his son’s best interests. He should explain his reasons, how his decision does or does not match with the expert’s recommendation, and thank her for her input. It is a power he should not exercise often but, in the end, he has the right to make the decision as long as it is in his son’s best interests.