Why the use of a “tiebreaker” to resolve custody disputes is no longer the best practice
Historically, in an effort to facilitate settlement, family law attorneys recommended the designation of neutral, third parties (usually professionals such as counselors or pediatricians) to serve in the role of tiebreaker to make a final parenting decision when parents are not able to agree. For example, if the parents are not able to agree on whether to move forward with a certain possession schedule, the child’s therapist would make the final decision. These creative “tiebreaker” provisions have been particularly popular as part of mediated settlement agreements, with the reasoning that this practice would help prevent repeated litigation when inevitable disagreements between parents arise.
Recently, a Texas appellate court has weighed in on the use of “tiebreakers,” and ruled that such provisions are unenforceable in family court orders. The Court held that a psychiatric clinic could not be designated as a “tiebreaker” when the clinic was not a party to the lawsuit and did not consent to serve as the “tiebreaker.” The Court further explained that these provisions may not be included in a family court order even if they are a part of an underlying mediated settlement agreement.
The Court specifically held that:
“[the psychiatric clinic] was not a party to the lawsuit. It was not served with process. And it did not participate in the underlying lawsuit or the mediation. However, the trial court’s judgment incorporates the terms of the MSA, which requires [the psychiatric clinic] to operate as a ‘tiebreaker’ in a custody dispute. [The psychiatric clinic] represents that it was never requested to serve this function. And [the psychiatric clinic] did not agree to this role. In fact, it requested several times to not be placed in that role. Because the judgment includes an entity that was not named in the pleadings and was not a party to the lawsuit, the trial court abused its discretion in the entry of that portion of the order.” In re A.C.P.C., 12-22-00080-CV (Tex. App. Aug 17, 2022)
Under our existing law, the Court’s decision makes sense. A person or entity is entitled to due process prior to being required to take certain action by court order. When a “tiebreaker” is named without prior notice or consent, they cannot be obligated to make a decision for disagreeing parents.
Some questions remain regarding the effect of the Court’s decision, and what is and is not allowed in settlements going forward. For instance, can a “tiebreaker” be used if the “tiebreaker” gives consent? Does the consent need to be in writing? Does the “tiebreaker” need to sign the mediated settlement agreement? Until the courts provide further guidance on these unanswered questions, the best practice may be to avoid the use of “tiebreakers” in your settlement agreements and court orders.
*Please note that Blog Posts are for educational purposes only and should not be considered legal advice.