The issue presented in this case is whether a father who shares joint legal custody of a child may enjoin the mother, the residential parent, from authorizing non-emergent surgery for the child.
The parties were married on November 6, 1977. Their daughter, Kaleena, was born on December 21, 1983. The parties were divorced on December 18, 1990; they resolved all issues between them by written agreement (incorporated within the Judgment of Divorce) which provides, in pertinent part:
(A) The parties shall have joint custody of Kaleena. Joint custody shall be defined as the mutual cooperation and mutual decision making respecting Kaleena's health, education, and welfare. It is understood, however, that the day-to-day decision making affecting the child's well-being shall be made by the parent with whom Kaleena is residing at the time.
(B) In the event of any unreimbursed medical expenses [for Kaleena], then the parties shall share in the expense with the wife paying 50% of the unreimbursed medical expenses and the husband paying 50% of the unreimbursed medical expenses.
(C) Neither party shall incur any major medical expense without the knowledge and consent of the other party unless it is of an emergency nature.
According to the largely uncontroverted affidavits submitted, and affording every reasonable inference from those affidavits in support of the applicant's position, on or about May 17, 1992, Kaleena's father, the non-residential parent, was riding a bicycle with Kaleena perched on the handlebars. The bicycle fell; Kaleena
fell head-first to the ground. On May 22, 1992, Kaleena's mother, the residential parent, brought her to a Dr. Heller for diagnosis and treatment; Dr. Heller found an obstruction to the child's nose resulting from the injury but advised, in light of the child's tender age (then 8), that he "wait and see". In the next several months, the mother took Kaleena to Dr. Heller twice more; Dr. Heller concluded that the condition was not correcting itself and recommended out-patient surgery. Accordingly, surgery to correct the obstruction, along with a tonsillectomy and an adenoidectomy, was scheduled for August 24, 1992, more than three months after Kaleena's accident.
The father was duly informed of Dr. Heller's recommendations. On August 3, 1992, he took his daughter to Dr. G. Korovin, an Eye, Ear, Nose, and Throat specialist in Manhattan, for an examination. Dr. Korovin provided a "second opinion" letter on August 6, 1992, whereby she concluded that neither "a tonsillectomy, adenoidectomy, or any nasal surgery is necessary at the present time. Although a tonsillectomy and adenoidectomy may not be harmful, there is no clear indication for the surgery. No nasal surgery is indicated at this time." Defendant forwarded a copy of Dr. Korovin's report to the mother and to Dr. Heller; he also asked the mother to reconsider her position.
The father also took his daughter to Dr. George Beecher, M.D., an otolaryngologist. Dr. Beecher noted that the child had a deviated septum but observed no symptoms referable to this condition and noted that the child could breathe air around the septum. He concluded that a tonsillectomy, an adenoidectomy, and surgery to correct the deviated septum was not necessary. He noted that the tonsillectomy and adenoidectomy would not be harmful if done correctly but concluded that no surgery was indicated.
When the father received no response to his request that surgery be reconsidered, he sought to restrain the mother from scheduling the surgery by ...