Joint legal custody, in general, means that both parties shall consult and agree on all major decisions concerning their children with regard to health, education and general welfare. The latter term is meant to cover all matters of importance affecting a child. While it is a good thing in theory for divorced parents to have equal decision-making rights for their children, does it work in reality? And what happens if one party does not comply with the obligation to consult and reach agreement with the other party over important issues in their children’s lives?
In a recent case (Moreno v. Jaran), the divorcing parties entered into an agreement that they would have joint legal custody of their son, and the mother would be the parent of primary residence. The child would live with the mother eight days out of two weeks, and the child would live with the father six days out of two weeks. The father remained in the marital home, and the mother decided to rent an apartment thirty miles away.
Upset that his ex-wife moved so far away after agreeing that, due to their parenting time schedule, they must live in close proximity to one another, the husband filed a motion to compel the wife to reside within a five mile radius of the marital home. The husband further requested that his rights be enforced because the wife did not consult with him in selecting the child’s pediatrician. The husband further requested that the court direct that the child’s previous pedestrian remain his doctor and that the child attend pre-school near his house.
The wife filed a cross-motion seeking: (1) to designate the new pediatrician she chose for their son closer to her home; (2) to designate her choice of health insurance for their son; (3) to have their son attend preschool through 12th grade near her residence; and (4) to modify the custody and parenting time arrangements.
The court ordered the wife to immediately bring the husband up to date with regard to any information concerning the child’s health and cautioned the wife that she had an obligation to consult and reach agreement with the husband concerning their son’s health, education and general welfare. The court ordered the parties to use a parenting coordinator to help them with issues involving their son. However, the court granted the wife’s requests to use the pediatrician she selected near her residence and to use the health insurance she selected for their child. The court denied her other two requests and also denied the husband’s requests.
While the wife’s actions were clearly in violation of the parties’ agreement, since selecting the child’s pediatrician and health insurer are major decisions regarding their child’s health and general welfare, it appears that the court felt that these decisions were not detrimental to the best interests of the child. The court did require the parties to utilize a parenting coordinator to help them deal with these types of issues in the future and reminded the wife of her obligations under the agreement. The court further warned the wife that her failure to abide by the agreement would result in sanctions.
On appeal, the Appellate Court affirmed the lower court’s rulings as a temporary order, citing that the parties were to work with a parenting coordinator, and any issues not resolved would be reviewed by the lower court. The Appellate Court learned that the wife was not cooperating with the parenting coordinator, and in light of that, they remanded the matter back to the lower court for further consideration of the issues regarding the selection of the pediatrician and health insurer. The Appellate Court also added one other caveat:
“. . .the continued failure of a party to confer and consult with the other, as required under the MSA and the agreement for joint legal custody, not only undermines the integrity of the agreement, but also inevitably jeopardizes any hope that the child’s best interests can be served. In such cases, sanctions on the offending party should be imposed.”
Maria Imbalzano is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Imbalzano.