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C. Madison v. W. Davis

Superior Court of New Jersey, Chancery Division, Family Part, Ocean

June 18, 2014

C. MADISON, [1] Plaintiff,
W. DAVIS, Defendant

Approved for Publication October 9, 2014.

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Jef Henninger for plaintiff.

John A. Patti for defendant.


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[438 N.J.Super. 29] L. R. Jones, J.S.C.

This case presents legal issues of first impression regarding the rights and obligations of divorced parents when their child attends pre-school.


Plaintiff and defendant divorced in 2013, following a four-year marriage and another year of contentious litigation. In a written matrimonial settlement agreement, the parties agreed to share joint legal custody of their three-year-old child, L.D., with plaintiff serving as primary residential custodian.

At the time of divorce, both parties were working, and the child was attending work-related day care at a particular pre-school (hereinafter referenced as " Pre-School A" ). The parties agreed to equally share the cost of future work-related childcare, and to mutually cooperate, in advising the day care facility to mail copies of bills and progress reports, if any, to both parties. The document, however, contained no express or implied agreement that plaintiff was obligated to permanently utilize the same day care provider. Nor were there any stipulated restrictions, limitations, or restraints against plaintiff, as the child's primary caretaker, electing to change day care providers in the future at her discretion. To the contrary, the settlement agreement explicitly provided that defendant's name would be added as an emergency contact at " any school and/or day care provider" (emphasis supplied), and that each party would provide the other party with copies of any communication to the day care provider as applicable.

In the agreement, the parties further concurred that " once the child is of school age," defendant would be authorized to obtain all information from the school regarding the child's progress, and that the parties would instruct the school to send information about the child to both parents.

[438 N.J.Super. 30] Less than four months after settling their divorce litigation, the parties commenced brand new, post-judgment litigation. The issue involved plaintiff's decision to change the child's day care provider from Pre-school A to a new pre-school (hereinafter referenced as " Pre-school B" ), which was of relatively similar cost and location. Plaintiff contended that the reason she wanted to switch providers was that Pre-school B offered seasonal swimming classes and preferential enrollment in such classes for attending students. Defendant, however, objected to plaintiff's decision, arguing that the real reason plaintiff wanted to switch pre-schools was because of a personal issue she had with

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the actions of the director of Pre-school A, who had allowed defendant to sign the child out of the pre-school on one occasion without plaintiff's prior knowledge and consent.[2] In short, a legal dispute erupted over the comparative rights of each parent to decide which pre-school their child should attend.

Asserting that plaintiff violated defendant's parental rights by switching L.D.'s pre-school without his prior authorization, defendant brings the present motion seeking a court order compelling plaintiff to immediately reinstate the child at Pre-school A, and to restrain plaintiff from moving the child to any other pre-school without his consent. The essential thrust of defendant's legal argument is threefold: (a) " joint legal custody" grants the parties equal rights on educational issues; (b) pre-school attendance is in fact an educational issue which defendant has an equal right to determine; (c) plaintiff therefore violated defendant's legal rights by changing the child's pre-school without his express authorization and consent.[3] Defendant contends that any decision by [438 N.J.Super. 31] plaintiff to change pre-schools should have been made jointly with him and only with his prior approval, " as if they are husband and wife making decisions as a family unit." Defendant's legal argument rests upon principles set forth in the landmark New Jersey Supreme Court case of Beck v. Beck, 86 N.J. 480, 485, 432 A.2d 63 (1981), which supports the concept of parents sharing joint legal custody under N.J.S.A. 9:2-4 and having " equal rights and equal responsibilities regarding the care, nurture, education and welfare of their children."

Reciprocally, plaintiff contends that defendant is unreasonably interpreting the terms and spirit of both their settlement agreement, and Beck, in an improperly restrictive fashion. While not contesting the principle that legal custody generally contemplates joint decision-making on major educational issues, plaintiff argues that this concept is intended to apply to significant scholastic issues once the child reaches school age and begins attending class in regular education program (i.e., kindergarten through twelfth grade, or beyond if college is an issue). Plaintiff urges that this principle does not, and cannot, reasonably apply to limit a primary residential custodian's ability to select or change a day care provider, albeit one with a discretionary pre-school component, as same is not a major educational decision requiring defendant's joint permission and consent. Plaintiff further points out that the divorce agreement expressly couches other education-related provisions in the future tense, i.e., what happens " once the child is of school age " (emphasis supplied), thereby reflecting the parties' true understanding that work-related day care and pre-school attendance simply does not require the same level of analysis and joint parental approach as does selection of a full-time school upon the child attaining legal school age.

Plaintiff stresses that, notwithstanding Beck, she as primary residential custodian has the general right to select L.D.'s day care provider. Her argument relies upon legal principles set forth and espoused in yet another landmark New Jersey ...

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