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Case Law Review for the Week of October 10, 2014

Madison v. Davis, Trial Court Published Opinion (October 9, 2014): In this post judgment divorce matter, the Court was tasked with deciding a dispute that arose between the parties pertaining to the child's attendance at a particular pre-school/daycare after the custodial parent changed the pre-school without the noncustodial parent's consent.

The noncustodial parent's argument was summarized as follows: The essential thrust of defendant's legal argument is threefold: (a) "joint legal custody" grants the parties equal rights on educational issues; (b) pre-school attendance is in fact an educational issue which defendant has an equal right to determine; (c) plaintiff therefore violated defendant's legal rights by changing the child's pre-school without his express authorization and consent. Defendant contends that any decision by plaintiff to change pre-schools should have been made jointly with him and only with his prior approval, "as if they are husband and wife making decisions as a family unit." Defendant's legal argument rests upon principles set forth in the landmark New Jersey Supreme Court case of Beck v. Beck, 86 N.J. 480, 485 (1981), which supports the concept of parents sharing joint legal custody under N.J.S.A. 9:2-4 and having "equal rights and equal responsibilities regarding the care, nurture, education and welfare of their children."

The custodial parent's argument was summarized as follows: While not contesting the legal principle that legal custody generally contemplates joint decision making on major educational issues, plaintiff argues that this concept is intended to apply to significant scholastic issues once the child reaches school age and begins attending class in a regular education program...Plaintiff urges that this principle does not, and cannot, reasonably apply to limit a primary residential custodian's ability to select or change a day care provider, albeit one with a discretionary pre-school component, as same is not a major educational decision requiring defendant's joint permission and consent. Plaintiff stresses that, notwithstanding Beck, she as primary residential custodian has the general right to select L.D.'s day care provider. Her argument relies upon legal principles set forth and espoused in yet another landmark New Jersey Supreme Court case, Pascale v. Pascale, 140 N.J. 583, 599-600 (1995). Pascale notes that the primary residential custodian is generally in charge of many aspects of a child's life, including "arranging alternative care, i.e., babysitting or day care." Id. at 600. Pascale further holds that the child's primary caretaker needs autonomy to make day to day decisions and utilize financial resources drawn from both parents' salaries (i.e., his/her own income), plus child support from the non-custodial parent, in order to effectuate such decisions "without endless discussion with the secondary caretaker." Id. at 600.4 Pascale further states that in a joint legal custodial relationship, the residential custodial parent "is afforded somewhat more authority to decide issues in the event of a disagreement, and may discharge such responsibilities subject to notification to, and dialogue with, the non-custodial parent who also has joint legal custody." Id. at 606.

The Court ultimately determined, that based upon the dual nature of pre-school and work related child care and the need to create a workable framework within which every parental decision is not subject to delay and uncertainty of parental rights, that the custodial parent has the initial right to make a decision subject to the noncustodial parent's right to raise an objection.

The Court did so by setting forth a seven step framework for decision making in this context:

First, when a pre-school program is being used in substantial part to fill a need for work-related day care, plaintiff, as the primary residential custodian, has the initial right under Pascale to select the proposed pre-school program for the child, or to transfer a child from one program to another one.

Second, the residential custodian's authority on this issue is not absolute and unlimited. Rather, a caveat to plaintiff's right to select a pre-school program which substantially meets legitimate work-related day-care needs is that the choice must be reasonable. Reasonableness includes consideration not only of cost, but of other factors as well, such as location and accessibility, hours and dates of operation, curriculum, and ancillary services (transportation, lunches, etc.). For example, if a custodial parent seeks to move a child from an existing pre-school to another pre-school which substantially increases the cost to the non-custodial parent or the travel time of the non-custodial parent, then such selection may potentially be deemed unreasonable and contrary to the child's best interests, under the totality of the circumstances.

Third, absent a restraining order or other court order keeping information regarding the pre-school confidential, plaintiff, as the residential custodian, has an obligation to supply defendant, as the non-custodial parent, with notice of any proposed change in provider in reasonably timely fashion.

Fourth, pursuant to Beck, defendant, as a joint legal custodian, has a right to investigate and evaluate information about a new proposed pre-school. Defendant does not have the right as a non-custodial parent, however, to unilaterally and arbitrarily block or veto plaintiff's decision on a pre-school or any other child care provider by simply refusing or failing to consent. Rather, if defendant believes plaintiff's selection of pre-school or day care provider is unreasonable and contrary to the child's best interests, and if he wishes for the court to review same, then he may exercise his rights under Beck by filing a motion with the court, in which the non-custodial parent carries the burden of proof of convincing the court, by a preponderance of the evidence, that the custodial parent's selection or change of the child's pre-school or child care provider is unreasonable and contrary to the child's health, education, general welfare and best interests.

Fifth, if the non-custodial parent is challenging the reasonableness of plaintiff's choice of pre-school, merely complaining about the choice is not enough. Rather, the custodial parent must demonstrate that there is a specific, more reasonable alternate plan available for providing work-related day care for the child.

Sixth, if the court finds that the selected pre-school selected by the custodial parent is unreasonable, the court may override the custodial parent's decision and order different day care arrangements including placement at a different pre-school. Alternatively, if the court finds the custodial parent's choice of pre-school day care plan is in fact reasonable, the court may approve same and may order both parties to contribute to same in the same manner as the cost of any other reasonable day care expense.

Seventh, if the court finds that either party is acting unreasonably on the issue, counsel fees and/or other financial sanctions may be issued by the court in its discretion.

After setting forth this process and ultimately deciding the issue, the Court, in further expressing its authority pursuant to its parens patriae jurisdiction, may on its own motion, sua sponte, enter an order compelling the parties to attend mandatory co-parenting counseling, even over objection, at parental cost and in the court's discretion.

The issue of parental decision making power and the right of the noncustodial parent to object to the custodial parent's decision making authority is one of the more troubling and confusing aspects of the custodial relationship and results in significant litigation between parents. This case helps to reduce such conflict by, at a minimum, providing a framework for dealing with disputes and, somewhat importantly, making it clear that never ending litigation over parental decision making authority can result in payment of counsel fees and mandatory counseling.

If you have questions regarding the decision making authority in your custodial relationship, please contact an attorney at Miller & Gaudio today to review your rights and obligations.

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