Can a parent with joint legal custody make unilateral decisions affecting the child?

After a divorce, there is often disagreement between the parents as to what is appropriate with regard to the child’s education and religious upbringing.  Under joint legal custody, both parties are to be involved in major decisions including but not limited to education, religious training, and non-emergency medical care.  Even once the spousal bond is dissolved, the parenting relationship survives and is to be respected.  When disagreements arise that cannot be resolved by the parents, the court will make a decision using the “best interests of the child” standard.  There is recognition that the preference of parent of primary residence will be given slightly more weight.

In a recently decided decision, the appellate court found that the mother’s unilateral decision to enroll the child in a parochial school must be scrutinized to make sure that the enrollment was in the child’s best interests.


FAMILY LAW 20-2-0186 Phillips v. Emerson, App. Div. (per curiam) (9 pp.) Defendant Emerson appeals from the Family Part’s order denying his application to bar his daughter’s attendance at a private parochial high school. During the parties’ marriage, neither the parties nor their children actively practiced their respective religious faiths. Emerson was raised Jewish. Plaintiff Phillips, the child’s mother, was raised in a Christian faith. Until 2012, all of the children attended public schools. In August 2012, Emerson learned that Phillips had enrolled their daughter in a private high school aligned with the Catholic faith. In the parties’ divorce judgment, they were granted joint legal custody of their daughter with mutual obligations to consult and confer regarding major decisions. The appellate panel finds the factual matrix available to the Family Part judge was wholly insufficient and incomplete to warrant a conclusion that the child’s best interests would be fostered by Phillips’s unilateral decision respecting the child’s high school education. The Family Part’s findings and conclusions were not adequately supported by credible evidence. Emerson was entitled to a plenary hearing as to disputed material facts regarding the child’s best interests, and whether those best interests are served by her enrollment in a private parochial high school. The appellate panel reverses and remands to the Family Part for a plenary hearing.  

About Sandy Durst

Sandy Durst, Esq., is the founding partner of The Durst Firm where he heads the Family Law Department. Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter. Each case is given the personalized attention it deserves.
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