One of the least discussed problems in joint legal custody is not conflict, it’s stalemate.
Joint legal custody means both parents share decision-making authority over major issues like education, non-emergency medical care, religious upbringing, and extracurricular activities. In theory, this encourages cooperation. In practice, it often creates paralysis or weaponizes the jointly legal custody award:
· If one parent says “no,” nothing happens. The child waits. Time passes. Opportunities close.
· A parent refuses to agree to act in the child’s best interest unless the other parent agrees to make concessions wholly unrelated to the decision (i.e., “I’ll agree our child can get vaccinated if you agree that I get to spend an extra week with him this summer”)
Utah law recognizes this risk. Parenting plans are required to include a process for resolving future disputes precisely because courts know that shared decision-making without a backstop can grind to a halt. The question is not whether disagreements will happen, but how they will be resolved without dragging the family back into court over and over again.
Most parents are familiar with common options: mediation, arbitration, expert deference, or giving one parent “final decision-making authority.” Each has strengths and real drawbacks. This post examines those tradeoffs and explores a less conventional option: the neutral tie-breaking process, used only as a last resort and designed to change behavior long before it is ever invoked.
The Core Problem: Equal Authority Without a Resolution Mechanism
Many Utah parenting plans labeled “joint legal custody” quietly include a tie-breaker giving one parent final say if the parents disagree. That may be efficient, but it is not joint legal custody (it’s sole legal custody in disguise). It converts shared authority into a hierarchy and invites power struggles disguised as cooperation.
At the other extreme are plans with no tie-breaker at all. Those plans sound fair on paper, but in practice they create a pocket veto: if one parent refuses consent, the decision dies unless someone files a motion and waits months for a hearing. And by that time, the opportunity that was open to the child is long gone.
Neither outcome serves children well. Children need their parents to make decisions that affect them, and they need to do it consistently, responsibly, and timely.
What parents actually need is a mechanism that:
- discourages unreasonable positions,
- resolves genuine deadlocks efficiently, and
- keeps most routine disputes out of court.
A Disciplined Alternative: Flip a Coin as a Last-Resort Backstop (Now Hear Me out)
A flip of a coin often raises eyebrows, and understandably so. Taken literally—“we flip a coin whenever we disagree”—it would be reckless and unacceptable. Utah judges would rightly reject it.
But that is not how the method I’m about to share with you works when properly structured.
In other legal contexts, variations of this approach—called structured randomized tie-breaking, final-offer selection, or choice-of-proposals—have been used for decades to resolve impasses. Its strength is not randomness itself, but the incentives it creates. When parties know that one complete proposal will be chosen intact, they are strongly motivated to make that proposal reasonable (because if the other parent takes the matter before the court to challenge it, it had better be reasonable, so that the court doesn’t punish a bad-faith proposal).
Applied carefully in custody cases, this method is not about delegating judgment to chance. It is about creating consequences for unreasonable positions and preventing delay from becoming a weapon.
The “Choice-of-Proposals” Framework (Plain English)
A judge-palatable version looks like this:
1. Discussion Period (as long or as short as a parent is willing to spend)
Parents discuss a specific disputed issue (for example, which summer camp to enroll a child in) in writing (written to ensure clarity and reviewability—no one can misrepresent what was discussed). They can talk on the phone or face to face, but the written record rules. If the parents are willing to discuss the matter for days, they may. If a parent feels necessary discussion is complete in a manner of hours, he/she may call for the coin toss but only after step 2 is complete.
2. Final Written Proposals
If no agreement is reached, each parent submits a written final proposal. Each proposal must be concrete, implementable, and focused on the child not on leverage or ideology.
3. Randomized Selection — Always Subject to Court Review Upon a Claim of Unreasonableness, Bad Faith, or Deleterious to the Best Interest of the Child
If the parents cannot or do not reach agreement after the required discussion period, one of the two final proposals is selected at random (for example, by coin flip or neutral number generator), and that proposal is implemented.
This selection, however, is never immune to judicial review.
If a parent believes that the proposal selected through the randomized process is unreasonable or contrary to the child’s best interests, that parent may seek review by the court. In that circumstance, the court does not review the method by which the proposal was selected, but rather the substance of the proposal itself, applying the ordinary “best interests of the child” standard.
The structure matters. The coin toss is used only to resolve good-faith deadlocks between facially acceptable options, where delay itself poses the greater risk to the child. It is not used to validate unsafe, illegal, high-risk, or extortionate decisions, nor to insulate a parent from accountability.
A parent who challenges the selected proposal bears the burden of articulating specific, child-focused reasons why the proposal is unreasonable or harmful—not merely that the parent disagrees with it or dislikes the outcome. Conversely, the court may consider whether a challenge was brought in good faith or as a tactic to avoid implementation of a reasonable decision, including when addressing attorney fees or other relief.
Attorney-fee shifting may be an additional safeguard, in that the court may award the prevailing parent reasonable attorney’s fees incurred in the review process.
Misuse of the dispute-resolution process or the court-review process may also be addressed through the court’s contempt powers, meaning a parent who acts in bad faith can be sanctioned with fines, remedial orders (such as parenting classes or community service), and, in serious cases, incarceration.
Moreover, abuse of this system could constitute a material and substantial change in circumstances that would warrant or even necessitate stripping the abusive parent of equal legal custody.
In this way, the process preserves what Utah law requires:
- parents make day-to-day decisions when they can;
- neutral mechanisms resolve routine stalemates; and
- courts remain the final safeguard when a parent credibly asserts that a child’s welfare is at stake.
Sample Settlement Agreement/Order Language
Equal Legal Custody – Dispute Resolution Procedure
Purpose. The parties share equal legal custody. This dispute-resolution procedure is intended to respect equal legal custody, prevent unnecessary delay in decision-making, encourage reasonable proposals in the best interests of the children, and reduce repeated court involvement, while preserving the court’s continuing authority to review any challenge that a parent genuinely asserts to be contrary to a child’s best interests under Utah Code § 81-9-203(10)(a)(vi)).
Procedure. In the event of a deadlock on a major legal-custody decision, the parties shall engage in written discussion for a reasonable period, so that there is a clear record of the discussions and of each parent’s respective proposal. If no agreement is reached, then before the tie-breaker process is implemented, each parent shall submit a written final proposal that is specific and implementable, within 24 hours of the time a parent invokes the tie-breaker process, unless the parties agree in writing to exchange proposals within a longer or shorter period.
If the parties cannot agree on which proposal to adopt, one proposal shall be selected at random using a mutually agreed neutral method (e.g., coin toss).
The parties shall use the designated process to resolve legal custody disputes unless an emergency exists (Utah Code § 81-9-203(10)(c)(ii).
Safeguards and Review. If a parent believes the selected proposal is unreasonable, was advanced in bad faith, or is contrary to the child’s best interests, that parent may seek court review. The Court shall review the substance of the selected proposal under the best-interests standard and may consider the reasonableness and good faith of the parties’ positions when awarding attorney’s fees or other relief. Misuse of this dispute-resolution process or the court-review process may be sanctioned through the Court’s contempt powers. Repeated or egregious misuse or abuse of this dispute-resolution or court-review process may constitute a material and substantial change in circumstances warranting modification or termination of equal legal custody.
Why This Works in Practice
It forces moderation.
Extreme proposals are self-defeating. Parents quickly learn that the safest position is a reasonable one they could live with if selected—and that advancing an unreasonable or bad-faith proposal carries real consequences, including exposure to court review, attorney-fee awards, and contempt sanctions.
It reduces power struggles.
No parent “wins” control. When a decision results from a neutral tie-breaker rather than one parent’s authority, the outcome is easier to accept and far less likely to be experienced as domination by the other parent. Losing to a neutral process feels fundamentally different than losing to the other parent’s will, which lowers resentment and makes future cooperation more likely. It preserves the integrity of equal legal custody.
No parent is vested with superior authority. Decisions are resolved through a neutral process rather than by unilateral control, maintaining the structure and meaning of equal legal custody while still allowing necessary decisions to be made.
It prevents limbo.
Children are not left waiting months and missing opportunities while adults argue or stall.
Most importantly: it is rarely used.
The existence of the mechanism changes behavior. Parents compromise because delay no longer guarantees leverage.
How Utah Judges Are Likely to View This Approach
Utah judges do not evaluate parenting plans in the abstract. The question is not whether a method is clever, but whether it responsibly protects children and preserves judicial oversight.
A Utah judge is more likely to approve this approach when:
- The parents genuinely share joint legal custody and have no history of abuse, coercion, or manipulation
- The tie-breaker process is clearly a last resort, not the default
- There is an explicit best-interests standard proposals must strive to meet
- The language is neutral, procedural, and restrained
- The plan demonstrably reduces court involvement rather than inviting it
A Utah judge is more likely to reject this approach when:
- One parent has a history of obstruction or bad-faith conflict
- The language sounds flippant or performative
- The plan appears to shield decisions from court review
- The mechanism looks like an attempt to avoid cooperation rather than facilitate it
Judicial skepticism here is not hostility—it is prudence. A well-drafted plan acknowledges that.
How This Differs From “Final Decision-Making Authority”
Many Utah parents are familiar with a common compromise: “joint legal custody, with one parent having final decision-making authority if the parents cannot agree.”
That approach is simple. And sometimes it is necessary. But it is often misunderstood.
When one parent has final decision-making or tie-breaking authority:
- legal custody is joint in name but hierarchical in practice
- one parent’s consent ultimately matters more
- disputes are resolved by power, not persuasion
This can incentivize gamesmanship, it breeds resentment, and hollows out meaningful co-parenting.
The structured randomized model works differently:
- Neither parent controls the outcome
- Both parents must submit defensible, child-focused proposals
- Unreasonable positions are punished by the process itself
Rather than asking “who decides?,” it asks “which reasonable option should be implemented now.?”
Neither the “final decision-maker” model or the “deadlock broken by a neutral coin toss” model is universally better than the other. The right choice depends on the problem being solved. Chronic obstruction, consistently bad judgment, and/or safety concerns may require final decision-making authority being awarded. But mere repeated stalemates between otherwise reasonable parents may be better addressed with a neutral backstop that preserves equality.
Resolving Deadlock Without Creating a Boss: Equal Authority Requires a Neutral Backstop
Joint legal custody fails when it assumes shared authority alone solves conflict. It doesn’t. What solves conflict is a fair, enforceable way to resolve disagreement among equals without turning every parenting choice into litigation.
The neutral tie-breaking process is not about flipping coins. It is about designing incentives so parents act reasonably, courts stay out of routine disputes, and children are not trapped in indecision.
Used carefully, it is not reckless. It is disciplined. And for the right families, it works precisely because no one wants to rely on it.
Utah Family Law, LC | divorceutah.com | 801-466-9277