Thursday, May 28, 2009
Fuentes v. Board of Education, ___N.Y.3d ___(April 30, 20009), is an important Education and Family law decision coming out of the New York Court of Appeals. The Court answers a certified question put to it by the Second Circuit and concludes that under New York Law, the non-custodial parent of a child does not retain decision-making authority pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions. The Court reasoned:
In appropriate circumstances, courts routinely include specific provisions in custody orders addressing decision-making authority between the parents (see e.g., Wideman v Wideman, 38 AD3d 1381 [4th Dept 2007]; Chamberlain v Chamberlain, 24 AD3d 589 [2d Dept 2005]; Davis v Davis, 240 AD2d 928 [3d Dept 1997]). Plaintiff asks this Court to recognize an implied right of non-custodial parents to exercise decision-making authority with respect to their child's education notwithstanding the custody order's silence on this subject. We decline to do so and emphasize the importance of parties determining these issues at the time of separation or divorce.
Mitchell H. Rubinstein