THE FALLACY OF FINAL SAY

 The vast majority of divorce cases in New York are settled. In cases where there are minor children, the most common custody provision is joint custody. Joint custody means that the parents of the child will consult each other regarding the major decisions affecting that child. However, a concept has crept into the matrimonial practice that has poisoned the idea of joint custody. That concept is known as “final say.”

Final say is frequently inserted in marital settlement agreements where there is joint custody. It provides that if the parties cannot agree on a major decision involving their child, one parent will have the right to make the decision. In essence, final say gives the favored party the right to force a decision involving their child on the unfavored party. By giving one party the right to make a unilateral decision involving the child, the concept of joint custody is effectively transformed into de facto sole custody.

Sometimes attorneys tried to ameliorate the harsh effects of final say by dividing decisions involving the child into spheres of influence. Under this scenario, one party would have the right to have final say on medical decisions for the child, while the other party would have final say on educational decisions for the child. Other spheres of influence include religious decisions, extracurricular activity decisions, and others. While this approach may make the concept of final say more palatable, it still flies in the face of the concept of joint custody. Giving one party the right to make unilateral decisions involving important aspects of the child’s life is not a fair way to make decisions concerning a child.

Sometimes, when the issue of final say becomes contentious, attorneys insert language stating that the parents will follow the recommendation of an involved third-party. For instance, for medical decision, the parties will agree to follow the recommendation of the child’s pediatrician. For an educational decision, the parties will agree to follow the recommendation of the child’s teacher, guidance counselor or principal. The problem with this approach is that it invests a third-party stranger with the power to make an important decision regarding the parties child. This effectively removes the parents from making a decision involving their own child. This is not in any child’s best interests.

The Appellate Division, Second Department, has approved the use of fair say provisions in a number of reported decisions. In Prohaszka v. Prohaszka, 103 A.D.3d 617 (2d Dept. 2013), the appellate court approved an award of joint custody to two somewhat antagonistic parents. The court further affirmed that the mother would have final say on all decisions involving the children, but added a requirement that the mother consult with the father before making the decision (a requirement of joint custody in any event). In Batista v. Falcon, 148 A.D.3d 698 (2d Dept. 2017) the Appellate Division affirmed a lower court decision awarding the parents joint custody but giving final say to the mother on all decisions concerning the child.

I suggest that the concept of final say should not be used in a marital settlement agreement. Both parents were able to make decisions involving their child together prior to the divorce action. There is no reason they should not do so once they are divorced. By eliminating one party having final say, the parties are compelled to legitimately negotiate with each other towards a consensus. If the decision is truly monumental, either party can apply to a court for determination of the issue.