Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Which Parent Decides Preschool When They Have Joint Legal Custody In New Jersey?

As a New Jersey attorney who concentrates divorce and child custody cases, I embrace that the Court’s focus is always the child’s best interest.  I am proud to say that this rings true at for myself and the excellent lawyers who work at my law firm.  Parents would ideally make decisions concerning their children according to what is in the best interest of their children. A divorce tends to add much more complications hostility, and pettiness to any joint decision parents must make. Many times this culminates in disputes that have to be decided by the courts. The recent case of Madison v. Davis, explored the rights of parents to pick their child’s preschool.

In Madison v. Davis, husband and wife divorced in 2013 after four years of marriage. In a matrimonial settlement agreement, both parties agreed to share joint legal custody of their three year old child, with the wife serving as the primary residential parent.

Both parties were working at the time of the divorce, and their child was attending work-related day care at a pre-school. The parents agreed to share the cost of childcare equally, and advised the preschool to mail copies of bills and progress reports to both parents. The agreement, however, did not contain any language stating that the wife was obligated to use the same day care provider permanently.  Conversely, the settlement agreement explicitly stated that the husband’s name would be added as an emergency contact at “any school and/or day care provider.”

The parties commenced brand new litigation only four months after their divorce settled. The issue at hand, concerned the wife’s decision to change the child’s day care provider. The new pre-school was of similar cost and location. The wife stated that the reason she switched providers was that the new pre-school offered swimming classes. The husband countered, arguing that his ex-wife’s real reason for switching pre-schools was due to a personal conflict she had with the director of the first pre-school. The director had allowed the husband to sign the child out of school one time without the wife’s knowledge and consent.

The husband claimed that his ex-wife violated his parental rights when she switched their child’s pre-school without first getting his authorization. He brought a motion seeking a court order compelling his ex-wife to immediately reinstate the child at the first pre-school, and restrain her from moving the child to any other pre-school without his consent. The husband argued that: (1) joint legal custody grants the parties equal rights on educational issues; (2) pre-school attendance is an educational issue; and (3) therefore the wife violated his legal rights when she switched pre-schools without his consent. The husband’s argument was based upon principles enumerated in the landmark New Jersey Supreme Court case of Beck v. Beck. Beck, supports the idea that parents sharing joint legal custody have “equal rights and responsibilities regarding the care, nurture, education and welfare of their children.”

Conversely, the wife argued that her ex-husband unreasonably interpreted both the terms of their settlement agreement, and the legal analysis set forth in Beck, in a restrictive manner. While the wife admitted that legal custody requires decision making on education, she argued that this concept only applies once the child reaches school age and begins regular education classes. Moreover, the principle did not apply to pre-school or day care, because choosing one is not a major educational decision. Finally, the wife pointed out that the divorce agreement stated education related provisions in the future tense, reflecting that the work-related day care and pre-school did not require the same level of joint parental discretion as the selection of full-time school.

The wife further contended that her status as primary residential parent gave her the right to select the day care provider. She relied upon the legal principles from another landmark New Jersey Supreme Court case, Pascale v. Pascale.

The court in Pascale, held that the primary residential parent is, in general, in charge of numerous aspects of a child’s life. These aspects include “arranging alternative care.” Pascale, further held the child’s main caretaker needs authority to make day to day decisions. Thus, in a joint legal custodial relationship, the residential parent is given slightly more authority to decide issues in the event of a disagreement. As a result, the wife concluded that she had the authority to switch the child’s pre-school with or without her ex-husbands prior approval.

     After reviewing and analyzing both Beck, and Pascale, the court noted that neither case dealt with questions concerning preschool. As such, it would have been problematic to decide the case by using generic principles out of either Beck, or Pascale. Principles of law must be considered in the context of the facts before the court. Beck, did not state that every decision involving a child’s education involving pre-school must be made jointly by divorced parents. Nor did Beck hold that a non-residential parent who disagrees with the residential parent’s choice of pre-school, has automatic veto power, or can legally prevent the residential parent from switching day care providers by simply withholding consent.  Similarly, Pascale, did not address pre-school either. Actually, the court discussed day care merely as one example of a residential parent’s many traditional functions. Pascale, also did not hold that a residential parent is free to arbitrarily change a child’s existing pre-school, without notice to the other parent.

     The court stated that the matter of a child’s attendance at pre-school is new, and the court must analyze the dispute based on fairness, logic, and common sense, in addition to the principles enumerated in Beck, and Pascale. The court applied the afore-mentioned principles and found that both parents had worthy claims regarding their rights, and the most equitable result would be a hybrid one that combined the principles of Beck, and Pascale, into one.

     According to the court, pre-school and daycare have two purposes. First, to provide a responsible care-taker for the child during business hours, so a parent can work, make a living, and provide for the child. Second, to provide the child with meaningful educational value during the same hours. Pre-school can benefit a young child in an educational and social manner. A child enrolled in pre-school has the benefit of an early introduction to important academic subjects like math, science, social studies, and art. From a social perspective, a child can benefit from experiencing how to function in a group setting, with similarly aged children, outside of the home. Moreover, a child has the opportunity to learn the concepts of responsibility, politeness, patience, and friendship from children with diverse backgrounds. This experience can benefit a child when he or she transitions to kindergarten. Therefore many parents place their children in day care, even though they might not have a work-related need, exclusively for educational and social benefits.

     The issue in Madison v. Davis, was that the two divorced parents could not get along or decide which pre-school their child should attend. As a result, the court decided that the stalemate between the parents was not in the best interest of the child, and decided to act under parens patriae jurisdiction, to break the tie and determined a reasonable way to solve the problem. Parens patriae is a Latin term that means “parent of the country.” This doctrine’s greatest application is in the treatment of children, mentally ill persons, and other individuals who are legally incompetent to manage their own affairs. The state is the supreme guardian of all children within its jurisdiction, and state courts have the inherent power to intervene to protect the best interests of children whose welfare is jeopardized by controversies between parents.

Accordingly, the court found that the wife exercised reasonable parental discretion when she chose to change the child’s pre-school. The two schools were similar in cost, location, and services. There was nothing inherently unreasonable about the switch. While the husband did have the right, as a joint legal parent, to bring his objections to court, he failed to prove that the switch was unreasonable, or burdened the child, the parent, or the parent/child relationship in a significant way. Therefore the court stated that the wife’s decision to switch schools was valid, and ordered the father to continue contributing to the pre-school costs. For more information on this issue, please contact my office today.