In an important recent opinion, Superior Court Judge Lawrence Jones (Ocean County) examined the competing claims of divorced parents regarding their child’s pre-school selection and issued a new set of legal principles to be applied if parents cannot agree. Judge Jones approached the task by considering the interplay between parental rights and the role of pre-school as a combination of child care and education.

In Madison v. Davis (pseudonyms for the parties’ actual names), Judge Jones was faced with the question of whether a custodial parent had the right to change a child’s pre-school without the consent of the other parent even though the other parent had joint legal custody. Although the lawyers for both parties made compelling arguments based on existing New Jersey law dealing with school selection, Judge Jones concluded that since the case did not involve compulsory education for children between ages 6-16, a specialized set of factors was necessary in the pre-school context.

Basically, the parties differed on the question of whether pre-school constitutes “day care” (mother’s position) or an “educational facility” (father’s position). The distinction is important because of judicial deference to the residential custodian (in this case the mother) concerning the right to select or change day care providers, as opposed to the more stringent requirement that both parents be involved in educational decisions involving their children. Instead, Judge Jones held that “simply lifting generic principles…and pasting them into the context of [this] litigation” was unsound since pre-school is a “cross between day care and school”. His conclusion was that since “there is no present law or policy” on the subject, the following principles shall govern:

  1. The custodial parent has the initial right to select a proposed pre-school program or to transfer the child form one program to another.
  2. The custodial parent’s rights are “not absolute and unlimited” in that such a selection must be “reasonable” in terms of cost, accessibility, hours, curriculum, and ancillary services.
  3. The custodial parent must provide the other parent with notice of his/her intentions regarding pre-school enrollment or any proposed change.
  4. The non-custodial parent, as a joint legal custodian, has the right to investigate and evaluate the above information but not to arbitrarily block or veto the custodial parent’s decision by simply refusing to consent.
  5. The non-custodial parent is free to file a motion with the court if he/she believes that the custodial parent’s selection is unreasonable and contrary to the child’s best interests. The non-custodial parent will, however, carry the burden of proof to so convince the court. The non-custodial parent must also provide the court with a “specific, more reasonable plan”.
  6. Finally, if the court finds that the pre-school selected by the custodial parent is unreasonable, the court may override that parent’s decision and order different day care arrangements, including placement at a different pre-school. The court can also award counsel fees to or issue other sanctions if it determines that a party has acted unreasonably.

The decision goes on to discuss ancillary issues such as the availability of the other parent to care for the child in lieu of pre-school which are beyond the scope of this article. For present purposes, the two “take-aways” for parents facing such issues are that finding mutually agreeable common ground is superior to the legal, financial and emotional toll extracted by contested litigation except in egregious circumstances and that a parent concerned about such matters should consult with experienced family law counsel before deciding how to proceed.