Legal custody allows both parents to participate in making important decisions for their children. It also allows the non-custodian to object if he or she believes that the primary custodian's choices are not in the child's best interest. Take the issue of preschool and daycare, or example. This is typically left up to the primary custodian, who would be picking up and dropping off the child most of the time. Hence, preschool choice seems to fall in the realm of “day-to-day” decisions, which even the courts generally agree is the primary custodian's domain. Preschool, however, is one of those hybrid arrangements where a very young child receives both daycare and education. Educational choices go beyond day-to-day decisions, so a non-custodialndoes have say in these matters.
Judiciary guidelines for disputes over preschool choice have been recommended, most recently in the 2013 case Madison v. Davis. This case involved a primary custodian who had changed her child's preschool because of several allegations, including a security issue in which the defendant was allowed to sign the child out without the plaintiff's knowledge. Predictably, their main source of contention was over the defendant's right to object to the switch. This brings us back to the old argument of whether a preschool is essentially a babysitting service, or whether it's an educational institution.
The presiding judge determined that it was a hybrid of both, therefore the non-custodian has a right to object if he or she feels that a preschool choice goes against the child's best interests. The judge's recommendation of a 7 step analysis did acknowledge that when a preschool is being used mainly for daycare, the primary custodian does have the initial right to choose. If a switch is necessary, the custodian is obligated to inform the non-custodian ahead of time, unless they are barred from contact via a restraining order. Most importantly, the non-custodian has the right to investigate and challenge the custodian's selection. However, there must be a legitimate reason for the objection, meaning something beyond “I don't like this school”. Furthermore, the non-custodian must provide an alternate child care/ education option comparable to the one chosen by the custodial parent.
The ruling took things even further, stating the court's right to override the custodian's decision if it is deemed unreasonable. In addition, the court reserves the discretion to imposed legal sanctions on either party for unreasonable behavior concerning this issue. These are fair and sensible guidelines for dealing with a sensitive issue – the well-being of our children. But it's essential to recognize that co-parenting requires communication and compromise. Non-custodial parents must also prepare to put put up with a certain amount of inconvenience when it comes to day-to-day decisions. However, if you do believe the other parent is putting your child at risk, you should consult an experienced attorney to discuss your rights and legal options. For more information about legal custody in NJ, please speak with the attorneys of Villani & DeLuca, P.C.