(973) 403-9200
by Charles F. Vuotto Jr.
The Honorable Lawrence R. Jones, J.S.C., has issued yet another insightful decision in the case of Madison v. Davis,1 concerning a legal issue of first impression regarding the rights and obligations of divorced parents when their child attends preschool.Recognizing there is no existing law directly on point, Judge Jones drew from prior case law, including Beck v. Beck,2Pascale v. Pascale3 and other cases to create a logical and equitable way to address the parties’ preschool dilemma.4 Judge Jones instructs that the parties should address such decisions with the following process:
First:“when a pre-school program is being used in substantial part to fill a need for work-related day care,” the primary residential custodian “has the initial right under Pascale to select the proposed pre-school program for a child, or to transfer a child from one program to another.”5
Second:
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the residential custodian’s authority on this issue is not absolute and unlimited.Rather, a caveat to [the residential custodian’s] right to select a pre-school program whichsubstantially meets legitimate work-related day-care needs is that the choice must be reasonable.Reasonableness includes consideration not only of costbut 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 [the residential custodian]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.6
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Third:
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absent a restraining order or other court order keeping information regarding the pre-school confidential…the residential custodian[ ] has an obligation to supply…the non-custodial parent[ ] with notice of any proposed change in a reasonably timely fashion.7
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Fourth:
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pursuant to Beck,…a joint legal custodian[ ]has a right to investigate and evaluate information about a new proposed pre-school.8 Therefore, the non-custodial parent (even as a joint legal custodian) “does not have the right” to “unilaterally and arbitrarily block or veto”the residential custodian’s“decision on a pre-school or any other child care provider by simply refusing or failing to consent.”Rather, if [the non-custodial parent] believes [the residential custodian’s] selection of pre-school or day care provider is unreasonable and contrary to the child’s best interests, and if he[or she] wishes for the court to review same, then [the non-custodial parent] may exercise his [or her]rights under Beck by filing a motion with the court, in which the non-custodial parent carries the burdenof 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.9
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Fifth:
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if the non-custodial parent is challenging the reasonableness of [the residential custodian’s] choice of pre-school, merely complaining about the choice is not enough.Rather, the [non-custodial] parent must demonstrate that there is a specific, more reasonable alternate plan available for providing work-related day care for the child.10
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Sixth:
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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 arrangementsincluding 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.11
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Seventh:
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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.12
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“This seven-step analysis respects both parties’ parental rights, and further blends and incorporates significant principles of both Beck and Pascale into[ ] the process,” which maintains a “steady focus upon parental reasonableness and the best interest[s] of the child.”13
As an aside, this case also explains that “the fact that pre-school tuition may include hours whichare not 100 percent work-related in nature” does not indicate that the “non-custodial parent is entitled to a pro rata refund or rebate from the custodial parent for every hour or minute of pre-school falling outside of working hours, if the child’s attendance or non-attendance during these hours does not affect the overall cost.”14
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A minute-by-minute audit and accounting of incidental time in a pre-school day is not required.The more material inquiry is whether the totality of the pre-school program is related in substantial part to the unavailability of the child’s parents due to work schedules, and whether the cost for the child to have a guaranteed, reserved seat in the class is reasonable under the totality of the circumstances.If the evidence reflects that the custodial parent has selected a pre-school program which involves substantial cost for time not required for work-related day care, then the court may consider this factor as relevant in determining the overall reasonableness of the expense, and whether the non-custodial parent should fairly receive some type of equitable reduction in his or her mandatory obligation to contribute to the cost of pre-school tuition.15
Another important point in this case is that there may be occasions when [the non-custodial parent]has available time to spend with the child on days when the child is otherwise scheduled to attend pre-school for work-related day care purposes.Generally, such additional parent/child time is worthy of encouragement, and may take priority over the child’s pre-school time, unless perhaps there is a very special event at the pre-school that day, such as a class party or a guest presenter.So long as the non-custodial parent provides reasonable advance notice to the primary residential custodian and school, and so long as the request for occasional extra time is reasonable and there are no other existing court-ordered restrictions on the non-custodial parent’s ability to see the child (such as suspended or supervised parenting time), additional parenting opportunities should generally be supported when a working parent can arrange his or her schedule to reasonably accommodate same.16
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However, this type of an arrangementis “generally applicable for pre-school only.When the child starts attending school between grades K-12, a parent generally should not pull a child out of class during school hours except on rare occasions, such as necessary medical appointments or other special circumstances reasonably warranting and justifying same.”17 In the event that a parent, on occasion, “take[s] a child out of pre-school for extra parenting time, and the pre-school charges a flat tuition rate, the fact that the non-custodial parent elects to exercise previously uncontemplated parenting time on a scheduled work day does not reduce that parent’s obligation to pay the same contribution towards tuition.”18
This decision also emphasized the need for parties to work assiduously to improve their co-parenting and communication skills.The court stated, “[w]hen parties are joint legal custodians, public policy generally encourages communication, cooperation, and hopefullya harmonious consistency in parental judgment.See Beck, supra, 86 N.J. at 488; Grover v. Terlaje, 379 N.J. Super., 400, 406 (App. Div. 2005).”19
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While the parties always technically retain the right to repeatedly return to court over newly arising issues, what they truly need for their child’s sake, as well as their own, is to commence participation in professional co-parenting counseling, and mutually work in a constructive and pro-active manner on improving their long-term ability to communicate and cooperate with each other as effective joint legal custodians.20
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Where this is not occurring and “one or both parties decline to voluntarily attend professional co-parenting counseling, the court maintains the discretion, and right, to require both parties to attend co-parenting counseling with each other under the direction of an appointed professional therapist for a designated period of time.”21
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Hence, if [ ] parties do return to court in the future and continue to demonstrate a chronic inability to effectively function as co-parents, the court 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.22
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Therefore, in the event“two joint legal custodians have ongoing difficulties in meeting this very basic component of their roles,” the court “may order, among other relief, co-parenting counseling as a condition of ongoing joint legal custodyconsistent with itsparens patriae jurisdiction and the court’s own obligation to protect the best interests of the child.”23
The author would like to give special thanks to Ashley N. Richardson, Esq., associate with Tonneman, Vuotto, Enis & White, LLC, for her assistance with this article.
Endnotes
[1]. Madison v. Davis, FM-15-1152-13-N (Ch. Div. June 18, 2014) (fastcase), was approved for publication on October 9, 2014. It is important to note that an unpublished trial court opinion “shall not constitute precedent or be binding upon any court . . .” R. 1:36-3. “Although an unpublished opinion does not have precedential authority, it may nevertheless constitute secondary authority.” Pressler and Verniero, Current N.J. Court Rules, Comment 2, R. 1:36-3, (Gann). Indeed, persuasive, unpublished opinions may be cited to by counsel so long as “the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.” R. 1:36-3.
[1]0. Id. at 14.
[1]1. Id.
[1]2. Id.
[1]3. Id.
[1]4. Id. at 15-16.
[1]5. Id. at 16.
[1]6. Id. at 16-17.
[1]7. Id. at 17.
[1]8. Id. at 17-18.
[1]9. Id. at 18-19.