The underlying divorce action was settled by a comprehensive, written
joint-custody stipulation.

In relevant part, the written agreement; (i) set forth designated
parenting time schedule(s); and (ii) provided each parent with a right
of priority over 3rd party child-care providers, when the children
were not enrolled in a regularly scheduled activity. The parties were
both employed, but the father had greater flexibility to make himself
available, irrespective of the whether that time was designated for
him or the mother.

The mother argued that her rights during her designated parenting time
would be diminished by permitting the father to remove the children
from an after-school program of her choice, and that doing so would be
punishing a working mother. The father argued that the after-school
arrangement of her choice was more childcare than an activity, and
that he was available for the children irrespective of who the
parenting time was designated for. The lower court, not wanting to
offend the mother's rights to care for her children, ignored the
availability of the father, and subtly changed the language of the
agreement to provide the mother with the ability to make "appropriate
after school arrangements, consistent with her regular work schedule".

On appeal, the court heard arguments by the father that the outcome
would likely have been different had it been the mother with greater
flexibility and who was available to care for the children. In its
decision, the appellate court cited cases that stand for the
proposition that "natural law" cannot replace the terms of an
agreement, and reversed the decision of the lower court. As a result,
the father's right to exercise his right of priority is recognized
(even) during the mother's designated parenting time, irrespective of
the mother's regular work schedule and appropriateness of the
arrangement selected by the mother for their children.

My office (Joseph & Smargiassi, LLC) represented the father in this
case.