In the days of my childhood, formal education began in Kindergarten when, finally, I got to ride the bus with the big kids.  Not so much any more.  The vast majority of children now go to some type of pre-Kindergarten program during which they have the opportunity to learn the basics of the alphabet, numbers and the like. Given the fact that many intact families have two working parents, and that in most single parent households, the parent works outside the home, work related child care and pre-school often simultaneous.  So then, in the case of two parents who are apart, who gets to decide where the child goes?

This issue recently arose in the published trial court decision of Madison v. Davis. The parties in that matter had recently divorced-the parties shared legal custody and the mother was the primary custodial parent. Both parents were both working. At the time the parties divorced, the child attended “Pre-School A.”  The parties’ settlement agreement provided that they would equally share the cost of work related day care and that they would both be listed as emergency contacts on any school or day care provider.  There were no restrictions on the mother to use any particular day care provider, and the agreement further provided that once the child was of school age, the father would be able to obtain all information about the child’s progress and both parties were to receive information from the school.

Shortly after the divorce, the mother moved the child to “pre-School B.” The father objected, stating that the change was a major educational decision, which, under the joint custody agreement, should have been decided jointly.  The mother responded, stating that this was a nothing more than a change in work related day care, and as such, a decision which she had the authority to make as custodial parent.

Recognizing that pre-school is a bit of a hybrid situation, the court fashioned a seven prong analysis to apply when this type of question comes up:

First, when a pre-school program is being used in substantial part to fill a need for work-related day care, the primary residential custodian, has the initial right to select the  program for the child, or to transfer a child from one program to another one.

Second, the residential custodian’s authority on this issue is not absolute and unlimited. Rather, the choice must be reasonable. Reasonableness includes consideration not only of cost, but of other factors as well, such as location and accessibility, hours and dates of operation, curriculum, and ancillary services (transportation, lunches, etc.). The court specifically noted that as an example, if a custodial parent seeks to move a child from an existing pre-school to another pre-school which substantially increases the cost to the non-custodial parent or the travel time of the non-custodial parent, then such selection may potentially be deemed unreasonable and contrary to the child’s best interests, under the totality of the circumstances.

Third, absent a restraining order or other court order keeping information regarding the pre-school confidential, the residential custodian, has an obligation to supply the non-custodial parent, with notice of any proposed change in provider in a reasonably timely fashion.

Fourth, a joint legal custodian, has a right to investigate and evaluate information about a new proposed pre-school.  If the non-custodial parent believes the selection of pre-school or day care provider is unreasonable and contrary to the child’s best interests, a motion can be filed. At that time, the non-custodial parent carries the burden of proof of convincing the court, by a preponderance of the evidence, that the custodial parent’s selection or change of the child’s pre-school or child care provider is unreasonable and contrary to the child’s health, education, general welfare and best interests.

Fifth, if the non-custodial parent is challenging the reasonableness of plaintiff’s choice of pre-school, merely complaining about the choice is not enough. Rather, there must be a demonstration that there is a specific, more reasonable alternate plan available for providing work-related day care for the child.

Sixth, if the court finds that the selected pre-school selected by the custodial parent is unreasonable, the court may override the custodial parent’s decision and order different day care arrangements including placement at a different pre-school. Alternatively, if the court finds the custodial parent’s choice of pre-school day care plan is in fact reasonable, the court may approve same and may order both parties to contribute to same in the same manner as the cost of any other reasonable day care expense.

Seventh, if the court finds that either party is acting unreasonably on the issue, counsel fees and/or other financial sanctions may be issued by the court in its discretion.

A fair reading of this decision demonstrates that what the courts are really looking for is to make sure that decisions are being made by custodial parents for children in their best interests, and that best interests include a consideration as to the effect on both parents.  To be sure, the issue of pre-school will be one which is added to the list of items to be negotiated in a settlement.

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