Questions often arise regarding the right of a primary residential parent to make decisions on many child-rearing issues without first having to obtain the prior approval and permission of the noncustodial parent. One issue that often arises is whether a parent of primary residence has the authority to either enroll a child in a preschool or daycare or to switch a child’s preschool or daycare without obtaining the prior approval and permission of the noncustodial parent.
A recent case, Madison v. Davis, 438 N.J. Super. 20 (Chanc. Div. 2014), addressed this issue and set forth a seven step analysis that governs the rights and responsibilities of both the custodial and noncustodial parents with respect to the enrolling a child in daycare or preschool or transferring a child to a different daycare or preschool. The seven step analysis is set forth as follows:
- When a preschool is being used to fill a need for work related daycare, the parent of primary residence has the initial right to select the proposed preschool or to transfer the child from one preschool to another;
- The parent of primary residence does not have absolute authority to either enroll or transfer the child to a new preschool or daycare and the choice proposed by the parent of primary residence must be reasonable. Reasonableness includes considerations of cost, location, accessibility, hours and dates of operation, curriculum, and ancillary services such as lunches and transportation;
- Where no restraining order is in place, the parent of primary residence has the obligation to supply the noncustodial parent with notice of any proposed change in provider in a reasonably timely fashion;
- The noncustodial parent has a right to investigate the information provided about the preschool, and if he has an objection, he must file a motion with the court. The noncustodial parent is not able to simply veto the proposed preschool selection. The burden of proof is on the noncustodial parent to prove that the selection is unreasonable and contrary to the child’s health, education, general welfare and best interests;
- If the noncustodial parent objects to the enrollment or transfer of the child’s preschool or daycare, he must also demonstrate that there is a specific, more reasonable alternate plan available for providing work related day care for the child;
- If the court finds the selected preschool to be unreasonable, the court may override the custodial parent’s selection and order a different daycare at another school. If the court finds the selection reasonable, the court may order the selection and compel the parties to contribute to the daycare or preschool depending on the circumstances;
- If the court finds that either party is acting unreasonably, counsel fees and or/other financial sanctions may be issued by the court in its discretion. Madison v. Davis, 438 N.J. Super. 20, 39-40 (Chanc. Div. 2014).
The seven step analysis set forth above demonstrates that the parent of primary residence does not have absolute authority to either enroll a child or transfer a child to a new day care or preschool without first notifying the noncustodial parent before doing so. The parent of primary residence must also propose a preschool or daycare that is reasonable in cost, location, accessibility, hours and dates of operation, curriculum, and ancillary services such as lunches and transportation. If the noncustodial parent, after having been given sufficient time to investigate the preschool or daycare, does not file a motion with the court objecting to the daycare or preschool proposed, the parent of primary residence may move forward with the daycare or preschool proposed.
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If you or someone you know has a question about his or her rights as they relate to custody and parenting time, contact Lyons & Associates online or call 908-575-9777 to schedule a confidential consultation. The attorneys at Lyons & Associates have substantial expertise in such matters as this office exclusively focuses its practice on family law and family law related issues.
Written By: Mark T. Gabriel, Esq.