One of the most confusing legal issues for divorced parents is the concept of legal custody versus physical custody. Physical custody solely refers to the child's residential status, meaning which parent the child lives with. While parents can have joint or shared custody, most families find it easier for one parent to have primary physical custody. In addition to regular visitations, the non-custodial parent still has legal custody, or the right to make decisions pertaining to the child's welfare. The non-custodial parent may also object to certain decisions made by the custodial parent, such as where the child goes to school, his or her religious practices, and major medical treatments.

There's no doubt, however, that the custodial parent is given a lot of leeway in the areas affecting the child's day-to-day life. For working parents, child care is a critical issue, especially for children who are too young for school. Preschool is a popular choice for parents of toddlers since it incorporates daycare with an educational curriculum. The preschool environment can also help children develop socialization skills that will make it easier for them to transition into kindergarten. While most parents don't object to the idea of preschool, they may have preferences for a certain type of atmosphere or curriculum. These differences sometimes result in legal disputes over where the child should be placed during the work day.

Although the non-custodial has a right to object to the custodial parent's choice of day care, he or she will need to prove that the selected institution is unfit or harmful to the child, i.e., against the child's best interests. This is difficult to prove since it requires a preponderance of evidence that can only be obtained after a thorough investigation of the proposed institution. For example, if the school has a previous history of hiring unfit teachers, or allegations of abuse by the staff, those would be circumstances that the courts would consider. In addition, the non-custodial parent would need to show that the custodial parent's choice is unreasonable given factors such as the cost and location. In some cases, lack of child care options may limit the custodial parent's choices, but this is rarely the case in most cities and townships. Thus, it's not reasonable to choose the most expensive preschool when the non-custodial parent doesn't earn a high income, and there are several other qualified programs in the area. Location may be another unreasonable circumstance if it adds substantial travel time that interferes with the non-custodial parent's visitation schedule. In addition to the reasons for objecting, the non-custodial would need to suggest alternative arrangements that are reasonable for the custodial parent.

For more information on your legal custodial rights, please speak with the experienced family law attorneys of Villani & DeLuca, P.C. Legal disputes over child care options are difficult to try, especially when they involve hybrid entities like preschool and Pre-Kindergarten. Our attorneys look forward to advising you of your legal options during a free initial consultation.