Although joint custody agreements are often detailed, issues can arise following the finalization of a divorce. For instance, choosing a new school or changing the current school of your child is typically a choice that is made by both parents in a joint custody agreement. But, does preschool count as “school”, or can one parent make a decision to change preschools without the other parent's consent? Preschool has become an expectation over the years as opposed to a day care option. Although it is generally expected that children will attend school prior to kindergarten, preschool is still a gray area when it comes to joint custody issues.
New Jersey ranks among the top states for highest enrollments in preschool programs, and issues regarding the right choice of preschool are frequent. Luckily, the recent trial Madison v. Davis, 43 N.J. Super. 20 (Ch. Div. 2014) delved into the issue of joint custody and preschool.

Madison v. Davis

Madison v. Davis demonstrated an example of joint custodial issues regarding the placement of a child in preschool and which school that child should attend. In this case, the mother, who is the parent of primary residence (PPR), wanted to change the child's preschool. The father on the other hand, thought that he should have a say in the matter since educational decisions should fall under their joint custody agreement. Meanwhile, the mother argued that their child's preschool was not serving primarily as an educational institution, but rather as a day care.
The court was unable to rule based on previous court cases and created the following criteria to determine whether both parents should have equal say in the child's preschool enrollment:
● If the purpose of the preschool program is primarily to fill the need for work-related childcare, the primary residential custodian has the initial right to select the program or transfer the child to another program.
● The choice must be reasonable, which considers cost, location and accessibility, hours and days of operation, curriculum, and other “ancillary services.”
● Assuming there is no restraining order or other court order restricting the parents' communication, the residential custodian must provide the noncustodial parent with notice of any proposed change in the provider in a “reasonably timely fashion”.
● The noncustodial parent has the right to investigate and evaluate the proposed preschool. He/she cannot simply refuse without justification. The noncustodial parent must file a motion with the court and prove, by a preponderance of evidence, that the proposed preschool is “unreasonable and contrary to the child's health, education, general welfare and best interests.”
● If the noncustodial parent disagrees with the proposed preschool, he/she must specifically demonstrate there is a “specific, more reasonable alternate plan.”
● Based on the case presented, the court will issue a ruling concerning the child's attendance at preschool and each parent's financial contribution towards it.
● If the court determines either party acted unreasonably, it may award counsel fees and/or sanctions.
In order to avoid custodial issues such as this one, make sure your initial joint custody agreement is as detailed as possible. Contact a family law attorney if you need assistance negotiating a custody agreement or if you need representation in court. Contact Villani & DeLuca family law attorneys at 732-709-7757 to learn more.