It has become increasingly common practice for family law practitioners (and mediators) to designate a tiebreaker to resolve disputes over parental rights. When parents can't agree on medical, psychological, or educational decisions regarding a child, a pediatrician, therapist, or school counselor is often vested with the authority to make the final decision. In other words, a non-parent professional is designated as the “tiebreaker.”

While this sounds good in theory, this type of agreement is frequently entered into without consent or prior input from the child's doctor, psychologist, school counselor, or principal. Often, the tiebreaker has no clue they have been tasked with making such important decisions about someone else's child. The unknowing tiebreaker may be drawn into never-ending drama between the parents and, worse, frequent and trivial disputes concerning someone else's child.

The Texas Family Code enumerates rights and duties to be allocated between the parents that are extremely important, including who has the right to designate the child's primary residence, the right to receive child support, the right to decide where the child goes to school and whether it is public, private, or home school, who can consent to invasive medical procedures in a non-emergency situation, and who can consent to psychiatric and psychological treatment for the child. Before the Court approves a parenting plan, the parties must allocate these rights to be exercised as either independent, joint, or exclusive.

With a joint managing conservatorship, parents may be reluctant to give the other parent the exclusive or unbridled independent right to make these important decisions. One parent may demand that these rights be subject to the agreement of both parents. This works well if the parents get along and can co-parent. However, in many situations, allocating joint rights can create a complicated scenario because both parents must agree upon a recommended course of action, or neither can consent.

To avoid this dilemma, lawyers came up with what appeared to be a workable solution to avoid requiring that one parent be given the final word in making parental decisions regarding a child's education, physical health, mental health, and even when and under what circumstances a parent has access to their child.

Enter the tiebreaker!

As this novel idea gained traction, more and more mediated settlement agreements (and, in turn, court orders) began to designate tiebreakers for situations where neither parent was willing to give the other final say in making a decision.

Genius, right? What could possibly go wrong? Well, as it turns out, a lot.

In re A.C.P.C., illustrates a frequent (and foreseeable) problem with this type of agreement. The case held that a psychiatric clinic could not be required to serve as a tiebreaker for custody disputes when the clinic was not a party to the lawsuit and never consented to serve in that role.

The parents in A.C.P.C. entered a binding mediated settlement agreement appointing the mother as the sole managing conservator and the father as the possessory conservator of the child. The mediated settlement agreement also provided that the father's possession and access to the child would be subject to the parties' agreement, and should the parties be unable to agree, the child's therapist at The Menninger Clinic would make the decision.

The parties submitted an agreed order adopting the terms of the mediated settlement agreement.  When the clinic learned of the proposed order, it wrote a letter to the trial court requesting that it deny entering the order, explaining:

Menninger was neither asked to serve as a “tiebreaker” nor is it willing to do so. In fact, serving as a tiebreaking vote in a custody dispute could very likely be damaging to the doctor‐patient relationship.  Accordingly, Menninger respectfully requests that the Court not sign the Order.  In addition, Menninger respectfully requests that no custody order entered in this case require Menninger to take an active part in custody decisions or to serve as a tiebreaking vote in custody disputes. Menninger does not and will not perform this role.

The trial court signed the order before receiving the clinic's letter.  When the parties refused to file a motion to set the order aside, Menninger wrote a second letter to the court explaining its position and requesting relief.  Surprisingly, the trial court refused, and Menninger filed a motion to modify the judgment to remove all references to Menninger in the order.  The trial court again refused.  An appeal followed.

On appeal, Menninger argued it was not a party to the underlying lawsuit, did not receive service of process, did not participate in the mediation, never agreed to serve as a tiebreaker, and, importantly, did not sign the mediated settlement agreement.

Not surprisingly, the Tyler Court of Appeals modified the final decree reiterating that judgment cannot be rendered against “one who was neither named nor served as a party defendant…unless a person waives service by making a general appearance before the court.” Finding that Menninger was not a party to the suit, was never served, did not participate in the litigation or mediation, and, importantly, never agreed to take on the tiebreaker role, the Court held that the trial court abused its discretion in the entry of that portion of the final decree requiring Menninger to serve as a tiebreaker.

Some Questions Remain

It's hard to argue with the appellate court's logic. If you're not a party to a mediated settlement agreement, you are not bound by it. Nevertheless, the decision does raise several intriguing questions, including:

Should attorneys and their clients seek advance permission from proposed tiebreakers before agreeing to such terms? Should a tiebreaker's consent be reduced to writing? Should the tiebreaker join as a signatory to the MSA? Are existing orders containing tiebreaker provisions now unenforceable? Was the trial (or appellate) court authorized to change the terms of a binding mediated settlement agreement? 

While tiebreaker agreements are well-intended and have proven helpful in getting reluctant parents to reach agreements regarding the allocation of contested parental rights, a key takeaway here is that one who is not a signatory to a mediated settlement agreement cannot be obligated to perform any terms of the agreement.

Perhaps it's time to get back to good old-fashioned co-parenting.

Final Thoughts

Most family law cases must be mediated at least once before proceeding to a final trial. In fact, most courts will also require mediation in cases involving disputes over custody, visitation, or child support hearing temporary orders. Armatys Millard can help with both! We are committed to keeping up with the caselaw regarding alternative dispute resolution and will always do our best to help lawyers and their clients reach agreements that are fair and enforceable. We understand the issues for temporary orders and for a final trial, and we will always give you the benefit of our years of judicial experience and knowledge. 

Armatys Millard Is Here to Help!

Armatys Millard provides mediation and arbitration services for family law disputes pending in Fort Bend, Harris, and surrounding counties. You can count on our extensive family law experience and judicial wisdom to help successfully resolve your case.

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If you need to mediate or arbitrate a divorce, custody dispute, or other family law issue, Armatys Millard, PLLC can help. Check availability and book your session online or call our office at 281-313-6800. We're here to help!