While many parents going through divorce who have children together attempt to come to an agreement as to how they will co-parent the children, as time goes on, issues may arise that cause conflict. For example, in the recently published New Jersey Superior Court case of Madison v. Davis, the court addressed for the first time the rights of divorced parents when their child enters pre-school. In Madison, the parties were divorced after four years of marriage. They had a three-year-old child together who lived primarily with the mother. The child was attending pre-school at the time of the divorce, as a type of work-related daycare.
The mother wanted to move the child from one pre-school program to another, alleging that the new school provided seasonal swimming lessons. The father disputed the mother’s reason for wanting to switch pre-schools and filed suit to prevent her from switching the child’s pre-school without his consent.
The parties relied on two New Jersey cases in supporting their arguments. The father relied on Beck v. Beck, which supports a non-custodial parent’s right to make decisions regarding the child’s well being. The mother relied on Pascale v. Pascale, which states that the parent of primary residence is typically given more authority in making decisions regarding children without having to first obtain the approval of the other parent. The court noted, however, that neither case directly addressed the issue of the parents’ rights in deciding which pre-school their child should attend. The court also acknowledged that pre-school is often utilized by parents as both a form of daycare and an introduction into a social and educational environment, but it is, nonetheless, not required by any law.
The court held that when pre-school is being used as daycare, the primary residential parent has the initial right to select a pre-school program or transfer to a different pre-school program. However, this right is not absolute—the parent must make a “reasonable” choice, considering factors such as location and cost. The primary residential parent has to give notice to the opposing parent of any change in pre-school. The opposing parent has a right to investigate the proposed school, and can file a motion with the court if he or she believes the school choice is unreasonable. If the opposing parent files a motion, he or she must show specific reasons why the choice is unreasonable and a viable alternative plan. The court may then decide whether the pre-school choice is reasonable or unreasonable and may act accordingly. If either party is acting unreasonably, the court may award costs and fees to the opposing party or issue sanctions to the unreasonable party.
When applied to the facts of this case, the court decided that the mother’s decision to switch pre-schools was reasonable and the father failed to prove otherwise. The court also stated that there may be instances where a parent does not have to attend work and may be able to spend time with the child, and in these circumstances, removing the child from daycare for a day or a couple of hours would be appropriate with advanced notice to the other parent.
Co-parenting can often lead to various disputes. If you have a problem with your current parenting schedule or some other aspect of your divorce settlement, the experienced attorneys at Sarno da Costa D’Aniello Maceri LLC can help. Contact us today at 973-274-5200 for help with your case.
