Often parties will reach a divorce agreement in which parties will have joint custody of the minor child. However, there will be language in the agreement in which one parent may be the “tiebreaker” in certain circumstances. In the case of Rogers vs. Hartsock, the mother filed a petition to modify a change of custody and prevent the mother-in-law from being used for supervised Visitation.
In this case, the parties were divorced in 2017 the mother was awarded sole physical custody of the child and the father was awarded visitation to be supervised by the paternal grandmother or an individual agreed upon by the parties. In April 2018, the mother filed a modification alleging that the father had exposed the child to an unsafe environment because of his use of illegal drugs and that he had abandoned his visitation rights to the paternal grandmother. The mother requested sole legal custody the child and she wanted the paternal grandmother to be removed as an authorized person for supervised visitation.
The court ruled for the mother and the father appealed. The case was affirmed on appeal.
First, the father argued on appeal that the removal of the paternal grandmother as a supervisor was a change in visitation and that the mother had the burden of showing that the material was material changes circumstances which served the child's best interest. Instead the court held that a change of identity of visitation supervisors is a matter within the discretion of a trial court.
In this case there was evidence presented that the paternal grandmother had filed criminal charges against the father for his purported theft of a watch from her home. Only, to turn around and agree to his release from incarceration so that he could provide care for her. Based on the evidence in this case the trial court did not err by concluding the paternal grandmother should not continue as a designated supervisor of the father's visitation with the child further. The court held regarding the decision making authority of the children was vested with the mother for final authority to make decisions. Further, that when the parents were unable to agree the court ruled that the mother had final making decision authority pursuant to the agreement of the parties.
The takeaway from this case is that if you agree that one party is going to be the “tiebreaker parent” then that parent is generally considered the primary physical custodian of the children for decision making purposes.
If you are seeking a modification of child custody, contact Ingram Law LLC to help you. We have been handling child custody cases for 20 years in Jefferson and Shelby County, Alabama. Contact us at 205-335-2640.