There needs to be the final decision maker for minor children(and it almost always should be a parent)

Posted Tuesday, May 18th, 2021 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I see a number of attorneys and pro se litigants who try to finesse the issue of final decision making authority by making both parents joint decision makers, requiring mediation before a final decision can be made (and often leaving final decision making authority unresolved if the matter isn’t resolved by mediation), or granting decision making to a third-party (arbitrators; guardians; counselors; pediatricians). While such agreements may enable to parties to avoid contested litigation, the result almost always leads to chaos.

A quarter century of family law practice leads me to conclude that there always needs to be a final decision maker for a minor child and that the final decision maker needs to be a person with custodial responsibilities (typically a parent but always a person who has custodial rights to the child).

This does not mean that final decision making cannot be circumscribed. For example, one can give a mother final decision making authority for education but prevent that mother from home schooling the child or enrolling the child in private school absent the father’s consent. One can give a father final decision making on medical decisions but require that father to follow pediatric recommendations on medications (and even require the father to use a particular pediatrician) unless the mother agrees. Often limiting a final decision maker’s range of decisions on a particular topic is a great method of finessing an agreement.

This also doesn’t mean that legal decision making cannot be divided between the parties, with one parent having final decision making authority on some topics and the other parent having final decision making authority on other topics. I’ve actually supported this concept of divided legal custody for cases in which parent have joint physical custody or in which one parent has a particular interest or expertise. However, ultimately someone needs to have the ability to make rapid legal decisions for a minor child and that person needs to be someone with routine caretaking responsibility.

When both parties have to agree before legal decisions can be made for the minor child the result is often gridlock. The more obstinate parent can simply keep the status quo in place by rejecting all options. This remains true even when the status quo is no longer a viable option. If neither party has final decision making on education there is no required method of determining where a child will attend school when neither parent remains in the school district where the child is attending school or when the child transitions from lower to middle to high school.

Without a final decision maker, routine decisions about medical care, orthodontia, counseling, extracurricular activities, or religious activities become unresolvable conflicts. These legal decisions remain unresolved until one party files a new custody action to have a final decision maker appointed. Litigants often reach agreements that avoid appointing a final decision maker to end contested litigation. Ironically but typically these agreements merely defer that contested litigation to a later date but create chaos for the parties and their child in the interim.

Simply deferring such decision making to mediation doesn’t solve this problem either. Again the more obstinate parent can keep the status quo in place by delaying mediation, and can further refuse to consider any resolution in mediation. Again legal decisions remain unresolved until one party files a new custody action to simply have a final decision maker appointed.

Granting a third party the right to make legal decisions avoids gridlock but creates other problems. For decisions that require a prompt response, a third-party decision maker may lack sufficient motivation or information to make a timely decision–as third-parties are rarely as invested as parents in making decisions for children. Further, as the child grows older, it is horrible optics that his or her own parents cannot make these decisions and that some third party needs to do so. Finally, there’s a strong argument that orders placing custodial authority with third-parties are invalid. Hardy v. Gunter, 353 S.C. 128, 138, 577 S.E.2d 231, 236 (Ct. App. 2003); Stefan v. Stefan, 320 S.C. 419, 422, 465 S.E.2d 734, 736 (Ct. App. 1995) (the family court cannot delegate custodial decisions to third parties).

One local family court judge used to refuse to approve agreements that failed to have a final decision maker–requiring the parties to agree on one before he would approve their custody agreements. His policy upended a lot of settled cases. However experience shows the wisdom of his policy. By making the parties think clearly about how decisions for their child would be resolved, he saved them future litigation and headache. For these same reasons, I counsel my clients that they must have final decision makers.

2 thoughts on There needs to be the final decision maker for minor children(and it almost always should be a parent)

  1. Robin Moore says:

    Agree 100% I have a situation very similar but the third party being DSS and the judge tricking the paternal father in signing his rights,, falsely thinking he was signing for medical attention if needed by temporary custodial

  2. Donald Loren Smith says:

    As a rule, human beings make joint decision making impossible. Hence, there is one manager, one President, one executive director, etc. You discuss my initial statement in every example you gave. Because of the human element, being a child to divorced parents is an unfortunate position. The parents who allegedly make them a priority, injure them effortlessly on a regular basis. Too often, their goal of exacting revenge or illustrating their new independent way of thinking, creates anxiety and constant tumult in the child’s life. I think people’s inability to grasp the concept of the best interests of the child prevents the joint decision maker idea from being successful, as you astutely point out. The buck needs to stop here-not here and there.

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