The 1 thing divorced co-parents need: a tie-breaker

By Kate Kovats

If you have kids and you’re getting divorced or are already are split up and co-parenting, you need a tie-breaker. Even if you never need to break a tie, you should have a plan for what happens if you disagree on decisions – big or small – to do with your children.

Without a way to break the tie, the status quo stands.

To illustrate, I’ll tell you about a case I had involving a teenage boy. His face was covered in painful, cystic acne. His entire face. It hurt him physically and crushed his confidence and spirit.  His doctor wanted to prescribe Accutane, a serious medication with potentially serious side effects that is used when acne is severe. The boy wanted it. His mom was in favor. His dad was adamantly opposed and wouldn’t allow it.

The parents had no tie-breaker, so the status quo stood. No Accutane. The boy would continue to be plagued by severe acne.

A similar scenario is playing out among divorced parents who don’t agree on whether their kids 12 and older should get vaccinated against COVID-19. If parents disagree on the Covid vaccine and don’t have a tie-breaker in place, their children will likely not be vaccinated – unless or until, perhaps, it is required at their school or the parents are able to push the issue before a judge, which can take months.

More parents will face this decision in the coming months as it’s expected that younger children will be able to get the vaccine. Pfizer recently announced its clinical trials in children 5- to 11-years-old show the vaccine to be safe and effective.

Want to avoid these situations? You can spell out in your custody order or agreement how you and your ex will break ties. Here are three possibilities.

  1. Binding arbitration

When you elect to break ties via binding arbitration, you are saying you and your ex will each present your side to a mediator – usually a family law attorney – and that you will accept the decision of this neutral, third party. Binding arbitration is a good idea for the big, important decisions to do with health, education and religion. It’s less expensive and quicker than taking these matters to court, but it isn’t cheap.

  1. Parenting coordinator

Parenting coordinators are trained to help parents come to agreement on wide-ranging and typically lower stakes matters. Bed times. Summer activities. Hairstyles. You will want to have a parent coordinator if you and your ex expect to have a lot of little conflicts and disputes in how you co-parent your kids. You can choose a parent coordinator or have one appointed to you. Either way, a court order is needed to establish that parent coordinator relationship. You can specify in your custody order or agreement that the parent coordinator’s recommendation will stand if you cannot otherwise agree.

  1. Creative thinking

You and your ex can be creative with how you agree that ties will be broken. You could say the pediatrician has the final say in medical matters. You could decide that mom has final say about education, and dad has the final word on religious upbringing – or vice versa. You could say a coin toss settles things. Or you could say you will pose the question to three people in your children’s lives – and however they come down on it will decide it. You can break ties however you like so long as it is spelled out in your custody documents.

Coin tosses aside, if your tie breaker scenarios involve humans, I always tell clients, “If you make the more compelling argument, the one that is in the best interest of the child, you should win every time.” Of course, it’s really the kids who win by having less conflict in their lives, too.