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A suggestion on how to define a “major” decision involving the child for purpose of triggering a duty to consult

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.

 

  • I do not know that it will resolve problems; however, I love the sheer brilliance of it, reminiscent of one child cutting the cake into two pieces and the other child getting first choice.

  • Greg, I thought of one potential problem with your solution. To use your piercing example, let’s say we have Heavily-Pierced Parent and Straight-Laced Parent with reciprocal “major decision” clauses. If Heavily-Pierced Parent takes their daughter to get her tongue pierced, Straight-Laced Parent would presumably be less than thrilled. I don’t think that Straight-Laced Parent would appreciate Heavily-Pierced Parent’s response of “What? Piercing isn’t a major decision. I’m fine with you taking her to get her [insert body part] pierced.”

    • Matt-

      That’s an excellent point. Clearly when parents take opposite and extreme positions on a particular issue, my definition of major event could cause problems.

      However, parents are likely to know the issues on which they take opposite and extreme positions and they can always add these limited issues as those that require consultation. Admittedly this fails to resolve problems in which these extreme positions develop after the custody agreement is made. However, the goal of this blog wasn’t to create the perfect definition of “major decision” (that’s impossible) but merely to come up with a better definition than the ones currently used.

  • Patricia

    I think it’s pretty creative. Nice job! Definately better than no definition.

  • Rachel

    This sounds like joint custody. If one parent is getting sole custody, there is probably a reason that joint custody wouldn’t work. This assumes parents will be able to come to an agreement, and that’s not likely the case in many situations. If one parent has sole custody, its more appropriate that the noncustodial parent is merely notified about major decisions – such as where the child goes to a school.

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