In Feldman v. Feldman, an interesting new unreported (not precedential) opinion from the Appellate Division, the Court addressed the issue of a child’s religious education, and whether the parties had already settled the extent of such education in their previously entered custody and parenting time agreement.  It is only coincidental that the parties here share the last name Feldman, since it was an earlier reported Appellate Division decision of the same name holding that the Parent of Primary Residence – defined as providing a residence for a child for more than 50% of overnights annually (or, if sharing is equal, providing the residence for the child while the child is attending school) has the right to determine the child’s religious upbringing and education. 

Here, the parties were divorced in 2005, coming to terms on a custody and parenting time agreement that provided Mom with the ability to make "all decisions regarding the child," (except when the child was in his care) and that she would "give advance notice" to Dad as to major decisions so as to give him enough time to voice any objection or file a motion in court.  The parties also acknowledged in a separate provision that the child attended Jewish day school and that she would continue to do so.  To that end, the parties also agreed to cooperate with the school in providing all financial information so as not to impact enrollment.  Separately, the trial court appointed a parenting coordinator to assist the parties with issues regarding the child. 

A variety of post-judgment motions were filed, largely revolving around the child’s continued attendance at the religious school – Solomon Schechter – and the parties’ ability to pay for same.  Mom wanted to enroll the child in public school for the sixth grade, but was denied.  The trial court took issue with Mom’s meeting with the public school without notifying dad, as well as her involvement of the child in the decision – going against the parenting coordinator’s advice. 

Dad subsequently filed an Order to Show Cause to compel Mom to pay for her share of past-due tuition at Solomon.  Mom was unemployed and again asked that the child be enrolled in public school.  Interesting was the trial court’s decision on its own in deciding the applications to interpret the parties’ agreement as to religious school to terminate after the child completed the eighth grade. 

On appeal of Dad’s motion for reconsideration of the Order, which was denied, the Appellate Division reversed and remanded for a "speedy" plenary hearing as to the child’s schooling and their intent as to the language in the custody and parenting time agreement.  The Appellate Division found that the trial court’s decision to interpret the language of the agreement was "unsolicited" and "premature," especially since it did not truly take testimony with the ability for cross-examination, and also because Mom did not argue her intent in reaching the agreement, but rather argued that it was no longer feasible for the child to attend due to the current distance of the residence from the school and the cost.  As a result, the trial court on remand was to determine the parties’ intent as to the child’s religious education.

Also interesting in its decision was the Appellate Division’s indication that, on remand, the trial court had to consider the fact that the Mom had unilaterally enrolled the child in public school and what sort of disruption that would cause – this despite the fact that Dad had appealed that very issue.  While the prevailing standard in such a decision as to public or private school is to minimize conflict to the child while also giving effect to the parties’ reasonable agreement, it would seem that Dad would already be at a disadvantage on the remand because of the public school enrollment.

The Appellate Division also made certain notable statements regarding the parenting coordinator, including its decision overriding the P.C.’s advice not to involve the child in the issue (adding to Dad’s seeming disadvantage), as well as its indication that the trial judge is more suited to interview the child, rather than an expert, due to the tight timing involved.  The Appellate Division seemed to nullify the P.C.’s role in its decision, including affirmance (without stated reasons) of the trial court’s execution of the Order, which also prevented Dad from engaging the P.C. should he take issue with Mom’s decisions as to the child’s dad-to-day activities. 

When adding Mom’s argument as to distance and cost, as well as a consideration that the child is already in public school and that she should be involved in the issue via interview with the trial judge, it appears that the parties’ intent in the original custody and parenting time agreement will taking a backseat in the overall determination.