A cautionary warning when drafting these clauses in a divorce/separation agreement.
KS v. JS, 2024 NY Slip Op 51418 – NY: Supreme Court, Putnam 2024:
“VICTOR G. GROSSMAN, J.
It is ORDERED that the application is disposed of as follows:
THE STIPULATION
This is a contested matrimonial action. On June 25, 2024, the parties
placed an oral stipulation (the “Stipulation”) relative to the custody
of their two young children on the record in open court. The transcript
of the proceeding was “so ordered” by the Court. So far as pertains to
the dispute presently before the Court, the transcript states as
follows:
Ms. Gallo: Your Honor, I believe that we reached a settlement based
on what the AFC has told us. . . . I do believe that we can probably put
the bullet points of the settlement on the record, but it will be
subject to a complete custody and access stipulation that we would then
ask the Court to so order
. . . . .
The Court: Is it the parties’ intention that the bullet points will
be controlling unless or until a formal document is executed?
Ms. Gallo: Yes, Your Honor.
The Court: Okay. Is that your understanding as well?
Ms. Dewbury: Yes, Your Honor.
The Court: All right. And, Mr. Deurso, is that your understanding as well?
Mr. Deurso: Yes, Judge, that’s my understanding.
Ms. Gallo: The parties in this matter will have joint legal custody
of the two minor children, L.S. and Lu. S. The parties are going to
utilize John Pappalardo as a parent coordinator solely for major
decisions of health, education and religion. . . . There will also be —
the parties will be guided by the recommendation of the PC in making
major decisions. And the party who the PC is in agreement with will be
able to implement their decision subject to the other party’s right to
seek a stay from a court of competent jurisdiction. . . . With respect
to the residential custody of the children, the Plaintiff will have
primary residential custody of the children subject to the Defendant’s
access schedule with the children which will be as follows:. . . .
(Transcript, June 25, 2024, pp. 4-6)
DEFENDANT’S APPLICATION
Plaintiff thereafter took unilateral action with respect to the
children which Defendant claims violated his rights under the
Stipulation as a parent enjoying joint legal custody of the children.
Defendant in consequence filed the present application for an order as
follows:
1. Declaring and/or directing that the parties’ June 25, 2024 joint custody agreement, which was “So Ordered” by this Court:
(a) requires the parties to engage in good faith
consultation (email exchanges to suffice) regarding all important or
major decisions (hereinafter “Major Decisions”) concerning the parties’
two minor children . . . prior to the [i] submission of unresolved Major
Decisions related to the health, education and religion of/for the
Children to the parties’ agreed on parent coordinator; and [ii]
implementation of any other Major Decisions concerning the Children;
(b) precludes either party from unilaterally implementing
any Major Decisions absent the issuance of a recommendation by the
parties’ agreed on parent coordinator (related to the health, education
and religion of/for the Children) or without the express written consent
or agreement of the other party regarding any other Major Decisions
concerning the Children;
2. Declaring that Major Decisions concerning the Children
include health, education and religious decisions of the Children, as
well as decisions or issues relating to dental, therapeutic,
psychiatric, extracurricular activities (both school related and
activities unrelated to school), summer camp, summer programs, day care,
day care facilities, and tutoring of/for the Children;
3. Declaring that if either party unilaterally implements
any Major Decisions concerning the Children without the express written
consent of the other party or the issuance of a recommendation by the
parties’ agreed on parent coordinator with regard to health, education
and religious decisions concerning the Children, the other party shall
not be required to contribute to the cost of any unilaterally
implemented Major Decisions . . .
Plaintiff in opposition asserts that the Stipulation unambiguously
restricts “Major Decisions” to those concerning “health, education and
religion.”
LEGAL ANALYSIS
A. The Construction of Matrimonial Settlement Agreements
A matrimonial settlement agreement is a contract subject to principles of contract interpretation. See, Rainbow v. Swisher, 72 NY2d 106, 109 (1988).
The rule applies to oral stipulations placed on the record in open
court: “[a]n oral stipulation of settlement that is made in open court .
. . is enforceable as a contract and is governed by general contract
principles for its interpretation and effect; [t]he role of the court is
to determine the intent and purpose of the stipulation based on an
examination of the record as a whole.” Scherer v. North Shore Car Wash Corp., 72 AD3d 927, 929 (2d Dept. 2010); Koppie v. Koppie, 62 AD3d 666, 667 (2d Dept. 2009); Flannery v. Flannery, 54 AD3d 804 (2d Dept. 2008).
The plain text of the agreement is the best source of the parties’ intent. See, Goldman v. White Plains Center for Nursing Care, 11 NY3d 173, 176 (2008); Burns v. Burns, 163 AD3d 210, 213 (4th Dept. 2018).
“Where . . . the contract is clear and unambiguous on its face, the
intent of the parties must be gleaned from within the four corners of
the instrument, and not from extrinsic evidence (Nichols v. Nichols, 306 NY 490, 496 . . .).” Rainbow v. Swisher, supra, 72 NY2d at 109.
B. The Parties’ Positions
Here, however, the parties offer conflicting interpretations of the Stipulation.
According to Defendant:
The parties in this matter agreed to share joint legal custody of the
Children. Neither has final decision-making authority and neither has
the unilateral right to implement any important or major decisions
regarding the children . . . [J]oint legal custody encompasses more than
only the health, education and religious decisions that the parties
agreed to submit to a parenting coordinator in the absence of an
agreement between themselves.
(Kesten Aff. ¶¶ 2, 3)
Plaintiff is wrong in even suggesting that the parties’
agreed that “health, education and religion” are the only “major
decisions” that exist or require joint decisions. They are simply the
only categories of major issues for which the parties made alternate or
tie breaking resolution arrangements if they were unable to mutually
agree on a decision relating to those three categories on their own.
(Kesten Reply Aff. ¶4)
According to Plaintiff:
Defendant’s contention that the Stipulation only prescribes
which Major Decisions will be submitted to the Parent Coordinator and
does not actually define the ambit of Major Decisions in general is not
accurate. The Parties agreed that the Parent Coordinator would be used
to resolve Major Decisions regarding health, education and religion on
which the Parties could not agree and intentionally limited the scope of
those decisions to those three (3) specific categories. Defendant’s
argument that entire unidentified swathes of Major Decisions could exist
(and that they are without any mechanism for resolution) defies logic.
(Gallo Aff. ¶9)
The very nature of family matters is highly discretionary,
individualized, and flexible and there is no statutory definition of
what constitutes a Major Decision or, for that matter, even joint legal
custody . . . The purpose of designating Major Decisions (and attendant
dispute resolution mechanisms) is to distinguish a subset of
particularly consequential decisions that require a greater degree of
coordination and input between divorced parents. Doing so accomplishes
the dual purpose of ensuring that both parents are involved in making
the most significant types of decisions while also exempting the dozens
of less significant decisions from time consuming and conflict-inducing
back and forth.
(Gallo Aff. ¶¶ 15, 16)
C. A Literal Reading of the Stipulation
On a purely literal reading of the language of the Stipulation, it
would appear that Defendant has the better of the textual argument. The
critical language, once again, is:
The parties in this matter will have joint legal custody of
the two minor children, L.S. and Lu.S. The parties are going to utilize
John Pappalardo as a parent coordinator solely for major decisions of
health, education and religion. . . .
The parties by this language agreed to “joint legal custody” without
qualification, i.e., without delimitation of the areas of the children’s
life to which it applies. That they agreed to use a PC “solely for
major decisions of health, education and religion” is naturally read, as
Defendant suggests, as carving out a subset of issues for reference to
the PC when the parents reach an impasse.
D. Construction in the Event of Ambiguity
Plaintiff’s view — that providing a mechanism of resolution “solely
for major decisions of health, education and religion” effectively
limited the scope of “joint legal custody” — goes beyond the literal
language of the Stipulation and rests on an argument that given the
fluid and ill-defined nature of such things as “family matters”, “joint
legal custody”, and “major decisions”, it “defies logic” to suggest that
the parties would go to the trouble of specifying a mechanism of
resolution for only a subset of the major decisions on which the parents
could disagree under a regime of joint legal custody. If and to the
extent that Plaintiff’s interpretation gives rise to an ambiguity
requiring resort to extrinsic aids to reach a proper construction of the
Stipulation, it invites consideration of the law of “joint legal
custody”, which was certainly present to the minds of practitioners as
learned and astute as those representing the parties herein.
In Dolman v. United States Trust Co. of NY, 2 NY2d 110 (1956), the Court of Appeals wrote:
[I]t is basic that, unless a contract provides otherwise,
the law in force at the time the agreement is entered into becomes as
much a part of the agreement as though it were expressed or referred to
therein, for it is presumed that the parties had such law in
contemplation when the contract was made and the contract will be
construed in the light of such law.
Id., 2 NY2d at 116. Elaborating on Dolman, the Fourth Department has written:
The Dolman rule is of longstanding vintage, and the
“principle embraces alike those [laws in force at the time of a
contract’s execution] which affect its validity, construction, discharge, and enforcement” (Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 550 . . . [1866] [italics added in Burns]. By virtue of the Dolman
rule, when parties enter into an agreement authorized by or related to a
particular statutory scheme, the courts will presume — absent something
to the contrary — that the terms of the agreement are to be interpreted
consistently with the corresponding statutory scheme [cit.om.].
Burns v. Burns, supra, 163 AD3d at 214. Broaching the issue from the perspective of the parties’ reasonable expectations, the First Department has observed:
Besides the common meaning of the language employed, the
expectations and purposes of the parties in view of the factual context
in which the agreement was made must be considered in interpreting a
contract term, with due regard to the parties’ sophistication [cit.om.].
With respect to reasonable expectations, it is axiomatic that the
parties to an agreement will interpret the instrument governing their
relationship in accordance with existing law [cit.om.].
Madison Avenue Leasehold, LLC v. Madison Bentley Associates LLC, 30 AD3d 1, 8 (1st Dept. 2006).
E. Construction of the Stipulation in Light of the Law of Joint Legal Custody
There are two salient points to be made concerning “joint legal
custody”, the first having to do with its meaning and scope, the second
having to do with the circumstances wherein it may appropriately be
implemented.
“Joint custody . . . reposes in both parents a shared responsibility for and control of a child’s upbringing.” Braiman v. Braiman, 44 NY2d 584, 589 (1978); Matter of Argila v. Edelman, 174 AD3d 521, 523 (2d Dept. 2019). In Trapp v. Trapp, 136 AD2d 178 (1st Dept. 1988), the First Department elaborated on the concept:
In joint legal custody . . . although the children actually
live with only one parent, both parents continue to share the same
rights and responsibilities as they did during the marriage to
participate in the decisions affecting their children. In this
situation, the day-to-day child rearing decisions are made by the parent
with whom the children are living, while decisions with respect to the
important issues, such as religious training, education and medical
care, and sometimes even less significant matters, such as discipline,
diet and the choice of a summer camp, are jointly made. [cit.om.].
Trapp, supra, 136 AD2d at 180-181. See,
Tippins, New York Matrimonial Law and Practice, Vol. 3, §21.2, p. 205
(2021) (“Joint custody, to work effectively, requires that the parents
be able to consult and agree upon decisions of major import to the lives
of their children. At a minimum, such decisions typically encompass
medical, religious, and educational issues.” [emphasis added]). As the Trapp
Court pointedly observed, “there has been no uniform application of the
term `joint custody’ and no single arrangement which results when a
joint award is made.” Id., at 181 (quoting Dodd v. Dodd, 93 Misc 2d 641, 644-645 [Sup. Ct. NY Co. 1978]). See also, Taylor v. Taylor, 306 Md. 290, 296, 508 A.2d 964, 967 (Md. 1986)
(“Legal custody carries with it the right and obligation to make long
range decisions involving education, religious training, discipline,
medical care, and other matters of major significance concerning the
child’s life and welfare” [emphasis added]).
A number of states have enacted statutes defining joint legal custody. Thus:
• Cal.Fam.Code §3003: “`oint legal custody’ means both
parents shall share the right and the responsibility to make the
decisions relating to the health, education, and welfare of a child.”
• Ga.Code Ann. §19-9-6(5): “`Joint legal custody’ means both
parents have equal rights and responsibilities for major decisions
concerning the child, including the child’s education, health care,
extracurricular activities, and religious training; provided, however,
that the judge may designate one parent to have sole power to make
certain decisions while both parents retain equal rights and
responsibilities for other decisions.”
• Idaho Code §32-717B(3): “`Joint legal custody’ means a
judicial determination that the parents or parties are required to share
the decision-making rights, responsibilities and authority relating to
the health, education and general welfare of a child or children.”
• Mass.Gen.Laws.Ann. 208 §31: “`Shared legal custody’,
continued mutual responsibility and involvement by both parents in major
decisions regarding the child’s welfare including matters of education,
medical care and emotional, moral and religious development.”
• Mich.Comp.Laws.Ann. §722.26a(7): “As used in this section,
`joint custody’ means an order of the court in which one or both of the
following is specified: (a) That the child shall reside alternately for
specific periods with each of the parents. (b) That the parents shall
share decision-making authority as to important decisions affecting the
welfare of the child.
• Minn.Stat.Ann. §518.003(3)(b): “`Joint legal custody’
means that both parents have equal rights and responsibilities,
including the right to participate in major decisions concerning the
child’s upbringing, including education, health care, and religious
training.”
• Miss.Code.Ann. §93-5-24(5)(e): “For the purposes of this
section, `joint legal custody’ means that the parents or parties share
the decision-making rights, the responsibilities and the authority
relating to the health, education and welfare of a child. An award of
joint legal custody obligates the parties to exchange information
concerning the health, education and welfare of the minor child, and to
confer with one another in the exercise of decision-making rights,
responsibilities and authority.
• Vernon’s.Ann.Missouri Stat. §452.375(1)(2): “`Joint legal
custody’ means that the parents share the decision-making rights,
responsibilities, and authority relating to the health, education and
welfare of the child, and, unless allocated, apportioned, or decreed,
the parents shall confer with one another in the exercise of
decision-making rights, responsibilities, and authority.”
• N.J.S.A. §9:2-4(a): “In any proceeding involving the
custody of a minor child, the rights of both parents shall be equal and
the court shall enter an order which may include (a) Joint custody of a
minor child to both parents, which is comprised of legal custody or
physical custody which shall include . . . (2) provisions for
consultation between the parents in making major decisions regarding the
child’s health, education and general welfare.”
• New.Mex.Stat.Ann. §40-4-9.1(J)(3, 4): “An award of joint
custody means that . . . (3) the parents shall consult with each other
on major decisions involving the child before implementing those
decisions; that is, neither parent shall make a decision or take action
which results in a major change in the child’s life until the matter has
been discussed with the other parent and the parents agree.” The “major
changes” referenced in subdivision “4” are: changes in home city or
state of residence; changes in religious denomination and religious
activities; type of education, public or private; major elective medical
or dental treatment; and changes in recreational activities.
• Oregon.Rev.Stat. §107.169(1): “As used in this chapter,
`joint custody’ means an arrangement by which parents share rights and
responsibilities for major decisions concerning the child, including,
but not limited to, the child’s residence, education, health care and
religious training.”
• S.Dak.Cod.Laws §25-5-7.1: “In any custody dispute between
parents, the court may order joint legal custody so that both parents
retain full parental rights and responsibilities with respect to their
child and so that both parents must confer on, and participate in, major
decisions affecting the welfare of the child. . . . If it appears to
the court to be in the best interest of the child, the court may order,
or the parties may agree, how any such responsibility shall be divided.
Such areas of responsibility may include the child’s primary physical
residence, child care, education, extracurricular activities, medical
and dental care, religious instruction, the child’s use of motor
vehicles, and any other responsibilities which the court finds unique to
a particular family or in the best interest of the child. . . .”
• Vermont.Stat.Ann. §664(1)(A): “`Legal responsibility’
means the rights and responsi-bilites to determine and control various
matters affecting a child’s welfare and upbringing other than routine
daily care and control of the child. These matters include but are not
limited to education, medical and dental care, religion and travel
arrangements. Legal responsibility may be held solely or may be divided
or shared.”
• Wisc.Stat. §767.001(2): “`Legal custody’ means . . . the
right and responsibility to make major decisions concerning the child,
except with respect to specified decisions as set forth by the court or
the parties in the final judgment or order . . . `Major decisions’
includes, but is not limited to, decisions regarding consent to marry,
consent to enter military service, consent to obtain a motor vehicle
operator’s license, authorization for nonemergency health care and
choice of school and religion.”
The foregoing caselaw and statutory authority teaches that while
shared responsibility for major decisions concerning a child’s religion,
education and health is at the core of joint legal custody, those three
categories do not exhaust the areas of a child’s life that may be
subject to consultation and mutual decision-making by parents under a
joint custody arrangement.
In New York, mutual control over issues pertaining to religion/education/health would, as Professor Tippins notes, constitute a minimal version of joint legal custody. See also, Trapp v. Trapp, supra.
However, New York courts, as Defendant aptly observes, often interpret
joint legal custody more broadly, not only by taking an expansive view
of what falls under the rubric of “education” or “health”, but also by
including, for example, such things as extracurricular activities and
summer camp. See, Chamberlain v. Chamberlain, 24 AD3d 589, 593 (2d Dept. 2005); Winslow v. Winslow, 205 AD2d 620 (2d Dept. 1994); Wideman v. Wideman, 38 AD3d 1318 (4th Dept. 2007); A.F. v. T.F., 83 Misc 3d 1228(A) (Sup. Ct. Westchester Co. 2024); D.A. v. C.A., 83 Misc 3d 1214(A) (Sup. Ct. Westchester Co. 2024); N.F. v. O.F., 82 Misc 3d 1240(A) (Sup. Ct. Westchester Co. 2024); M.R. v. A.D.,
32 Misc 3d 1512 (Sup. Ct. NY Co. 2011). Other states by statute codify a
broad view of joint legal custody by means of the definition of major
decisions which require consultation and mutual decision-making: in many
cases by incorporating such all-encompassing terms as the child’s
“welfare” or “general welfare”, in others by adding to
religion/education/health such other categories as extracurricular
activities, change of residence, change of recreational activities,
child care, travel arrangements, and/or use of motor vehicles.
Thus, when the parties agreed to joint legal custody of their two
minor children without explicit definition or limitation, they may prima facie be deemed to have intended a regime of mutual decision-making on a scale reflected in the law, as summarized above.
However, that does not conclude the analysis. In Matter of Hreat v. Hreat, 189 AD3d 1237 (2d Dept. 2020), the Second Department, quoting Braiman v. Braiman, supra, wrote:
“[J]oint custody is encouraged primarily as a voluntary
alternative for relatively stable, amicable parents behaving in mature
civilized fashion” (Braiman v. Braiman, 44 NY2d 584, 589-590 [1978]).
“However, joint custody is inappropriate where the parties are
antagonistic toward each other and have demonstrated an inability to
cooperate on matters concerning the child” (Matter of Gorniok v. Zeledon-Mussio, 82 AD3d 767, 768 [2011] . . .).
Hreat, supra, 189 AD3d at 1238. See, Trapp v. Trapp, supra, 136 AD2d at 181 (same). See also,
Tippins, New York Matrimonial Law and Practice, Vol. 3, §§ 21.2-21.4,
pp. 204-217 (2021). Professor Tippins takes a markedly cynical view of
the prospects of joint legal custody for success. He observes inter alia:
• “[Joint legal custody] was a nice `touchy-feely’ ring to
it and is often touted as a potential panacea to the deadly disorders
which commonly emerge from a custody contest. Unfortunately, like so
many altruistic alternatives postulated in the realm of domestic
relations, joint custody is often more appealing on paper than it is
workable in the heat of a family fray.” Id., at 204.
• “Joint custody, to work effectively, requires that the
parents be able to consult and agree upon decisions of major import to
the lives of their children . . . This sharing of the decision-making
process is at once the hallmark and the downfall of joint custody as a
practical solution to many custody disputes. It is often quipped within
the matrimonial bar that if the parties could get along well enough to
navigate such choppy custodial waters, they would not have needed to
divorce in the first place. While this aphorism may be overstated,
practice experience indicates that it is a rare couple who can transcend
the incidents of their own estrangement and effectuate postdivorce
coparenting in a meaningful and amicable way. Id., at 205.
• Professor Tippins goes on to reference “[t]he almost
infinite potential for mismanaged or maliciously managed joint custody
to inflict instability and psychological harm upon the child” (id.,
at 211), and observes: “The Braiman decision requires mutual
cooperation and parental good-faith as a precondition to joint custody.
Because these are scarce and precious commodities in matrimonial
disputes, the courts have not been inclined to award joint custody where
it is opposed by either parent and where the requisite mutual
cooperation is unlikely. The decisions occasionally observe that no
matter how attractive joint custody may seem in concept, the commonly
encountered lack of parental cooperation renders it impractical in
application and potentially detrimental to the best interests of the
children.” Id., at 212-213.
Query, whether in the circumstances of this case the “preconditions”
for a successful joint custody arrangement—mutual cooperation and
parental good faith—are so patently lacking that, as Plaintiff urges, it
would “defy logic” to find that she agreed to a custody stipulation
wherein “unidentified swathes of Major Decisions” exist that are
“without any mechanism for resolution”?
The Court notes in this regard that (1) Plaintiff without notice to
Defendant left the marital home and removed the children to New Jersey;
(2) Defendant improperly and without notice to Plaintiff accessed
confidential information on her electronic devices; (3) Plaintiff was so
mistrustful of Defendant that when she returned to New York from New
Jersey she did not want to disclose her new address to Defendant; and
(4) the parties have spent inordinate sums of money—well beyond their
personal means—for attorneys fees to litigate an incontestably
acrimonious matrimonial litigation. This does indeed suggest to the
Court that the parties may not be able to overcome “the incidents of
their own estrangement” sufficiently to succeed under a regimen of joint
legal custody.
However, it proves too much—why then did Plaintiff agree to joint
legal custody at all? Even the limited version of joint legal custody
for which Plaintiff advocates is fraught with difficulty. Although the
parties are both Catholic it has been made plain herein that
disagreement on religious issues was one of the precipitating factors in
the demise of their marriage—and yet they have undisputably agreed to
mutual decision-making on religion for their children. Choice of schools
has also been a significant bone of contention, much discussed in open
court, and yet the parties have also undisputably agreed to mutual
decision-making regarding the education of their children.
As for the absence of a specified mechanism for resolving issues
other than religion/education/health, the Court notes that the
Stipulation made in open court contained only the “bullet points” of a
custody settlement “subject to a complete custody and access stipulation
that we would then ask the Court to so order.” The parties are, of
course, obligated to negotiate the final custody and access stipulation
in good faith. Some matters subject to consultation and mutual
decision-making do not rise to the level where the involvement of a PC
would be necessary or appropriate. The parties are free to negotiate a
more informal dispute resolution mechanism for such matters, or to
allocate final authority/responsibility for certain decisions to one
party or the other. Moreover, the scope of the final joint custody
agreement is constrained by certain relatively well-defined parameters
governing its mutual decision-making component. First, as the very term
denotes, it applies only to “decisions” and not, for example, to
preparatory or executive measures undertaken in connection with
decisions. Second, the “decisions” must rise above “day-to-day child
rearing decisions”, which are entrusted exclusively to “the parent with
whom the children are living.” See, Trapp v. Trapp, supra.
In conclusion, the Court after considering the law of joint legal
custody finds nothing therein that would displace a construction of the
parties’ Stipulation in accord with the plain meaning of the language
they employed. The Court accordingly adheres to its conclusion that by
this language the parties agreed to “joint legal custody” without
qualification, i.e., without delimitation (other than that inherent in
the legal term itself) of the areas of the children’s life to which it
applies; and further, that their agreement to use a PC “solely for major
decisions of health, education and religion” is naturally read not as a
limitation of the issues subject to consultation and mutual
decision-making, but as carving out a subset of those issues for
reference to the PC when the parents reach an impasse.
F. The Specific Actions Complained Of
While joint legal custody requires mutual cooperation on major
decisions concerning the children, it also requires on the part of each
parent a measure of trust in the good faith and sound judgment of the
other, i.e., a recognition that despite their own differences each acts
with the true good of the children at heart. The Court finds that
Defendant’s view of what joint legal custody requires of the parties is
incorrect with respect to most of the specific actions by Plaintiff of
which he complains.
• The choice of an extended summer camp or program would
seem to qualify as a major decision, inasmuch as it would have a
significant bearing on the child’s well-being and education. Here,
however, Plaintiff merely enrolled Lu. at L.’s camp for four days during
her own parenting time. As a short-term recreational activity confined
to Plaintiff’s time with the child, that choice has none of the earmarks
of a major decision and was entrusted exclusively to the Plaintiff.
• Similarly, the choice of an extended day care arrangement
would seem to qualify as a major decision. In this day and age most day
care facilities have and indeed tout educational programs even for
two-year olds, as witness here the fact that what Plaintiff calls a day
care presents itself as a “nursey school & kindergarten.” However,
the parties acknowledged in proceedings before this Court that Plaintiff
was faced with a need to take prompt action to make arrangements for L.
and Lu. upon her recent move, just before the start of the school year,
back to New York. Under the circumstances, Plaintiff cannot be faulted
for enrolling Lu. after providing Defendant with information concerning
the alternatives.
• Taking L. on a new-school visit to get acquainted with the
environment, filling out school forms, and bringing him to the doctor
for a regularly scheduled physical exam are not “decisions”, never mind
major decisions. These are all purely executive measures entrusted to
the discretion of each parent on his or her own time with the children.
• Plaintiff is free to choose her own Catholic parish, to
register the children in her parish, and to take the children to Mass
with her when she has them on Sunday. Defendant is likewise free to
choose his own Catholic parish, to register the children in his parish,
and to take the children to Mass with him when he has them on Sunday.
Registration is a purely administrative matter with no impact on the
children’s religious upbringing. On the other hand, whether they attend
Catholic school, where they attend Catholic school, where they pursue
religious education, and where they receive their Sacraments are major
decisions subject to consultation and mutual decision-making.
G. Conclusion
Items numbered “1(a)” and “2” of Defendant’s Order to Show Cause for a
declaration concerning the scope and meaning of the parties’ June 25,
2024 Stipulation in open court relative to the custody of their minor
children are granted to the extent indicated hereinabove. Items numbered
“1(b)” and “3” of the said Order to Show Cause are denied, as they
relate to matters which remain to be negotiated in good faith as part of
the complete custody and access agreement contemplated by the June 25,
2024 Stipulation, the terms of which cannot—without trying custody
issues to a conclusion—be imposed upon the parties by the Court.
IT IS SO ORDERED.
The foregoing constitutes the decision and order of the Court.”