Where the parties’ joint legal custody agreement only provided for each parent to have equal input on all major decisions, including education, but did not provide for conflict resolution, the mother, after a hearing, was awarded temporary decision-making authority. Such was the holding of the April 11, 2013 decision of the Appellate Division, First Department, in Sequeira v. Sequeira.

The appellate court held that on the motion for such relief, New York County Supreme Court Justice Lori Sattler properly exercised her discretion in determining that it was in the child’s best interest to award the mother that power.

The parties had agreed to joint legal custody, which their agreement defined as including equal input with respect to all major decisions, including education. They did not, however, provide for a situation, such as the one presented, where the parents could not agree on where their child should attend school. The failure of the parents to agree on this issue thus presented the change in circumstances necessary for the court to modify the parties’ arrangement to protect the best interests of the child.

The record supported the temporary award of educational decision-making to the mother. The father’s due process rights were honored by the fair hearing held by Justice Sattler. He was permitted to cross-examine the mother, testify on his own behalf, and argue his case. As to this argument to the appellate court that he was denied an opportunity to hire an attorney, he never made a request to do so.

Comment: “Joint custody” is a nebulous term. Thus, care should be taken to carefully define what the parties intend by the use of that term. If shared decision-making is intended, the particular subjects or criteria requiring the parents’ agreement should be specified. Moreover, the procedure  to resolve conflict must be detailed. The steps to be taken before asking a court to intervene should be made clear. Whether the parents are required to work with a therapist, consult an expert, or engage a mediator as a condition to making a judicial application should be set forth. Moreover, although in New York, the delegation of decision-making to a third party other than the court may be against public policy, providing some authority to an agreed-upon tie breaker may be determined to be in the best interests of the children.

On this appeal, the father represented himself. The mother was represented by Lara Ott of Stein & Ott, LLP, of Manhattan.