I was in a mediation earlier this week in which my client was seeking a requirement that his children’s mother consult with him before making “major” decisions regarding their children. Many non-custodial parents want a similar duty to consult as part of any custody agreement. Often the custodial parent resists such language because he or she doesn’t want the burden of consulting on every issue and no one ever seems able to adequately define what constitutes a “major” decision.
The problem of defining a “major” decision for the purpose of triggering this duty to consult has bedeviled me for years. Leave it vague and it’s subject to continual argument. Attempt to list every decision that is “major” and every unanticipated issue that is left out is no longer subject to a duty to consult–plus the list becomes unwieldy.
During this mediation, I believe I may have developed an elegant solution to this problem. I proposed that a major decision is:
the type of decision that the [non custodial parent] would not have the right to unilaterally make during his [or her] time with the children.
What I like about this language it is encourages reciprocity and requires the parties, especially the custodial parent, to be reasonable. The custodial parent doesn’t believe that where the child attends school is a “major” decision. Fine! The non custodial parent now has the right to change the child’s school during his or her time with the child [admittedly unlikely to happen]. More realistically, if the custodial parent doesn’t believe whether their daughter gets her nose pierced is a “major” decision, he or she can’t complain when their daughter returns from visitation with a pierced tongue.
In contrast, if the custodial parent takes the position that only he or she has the right to get the children’s hair cut, he or she now has an obligation to consult with the other parent before the children get any hair cut.
There might well be flaws in this formulation, and readers are encouraged to point them out, but I am thinking of making this language standard in my agreements dealing with the duty of consultation.