by Daniel D. Feldman, Esq., Hallett Whipple Weyrens
Adjusting to a new school is hard. So many teen movies involve a kid moving into a new school, starting over. The problems for the student are often comical in the movies. In real life, many issues about a child starting at a new school aren't funny. And when the child's parents are not cooperating, these issues need resolution. While bringing co-parenting breakdowns to court is not pleasant, it may be the only way to solve a choice over a new school.
Generally, your child will go to school where the parent who has primary residence lives or by agreement between the parents. But what happens when that school is no longer available, the parent moves or another school option arises? If your child is facing a new school and your child's other parent disagrees about where to send that child, you have a family law problem.
Unless you have an order from a court that says otherwise, as a parent you have significant rights regarding your child. This is so because parents have a fundamental interest to direct the care, custody, and control of their children. Reflecting that basic principle, state law says that the parents are the joint natural guardians of their minor children and are jointly entitled to the care, custody, control, services and earnings of their children. Neither parent has any rights paramount to the rights of the other with reference to any matter affecting their children.
The family court gets involved when a parent seeks resolution of a disagreement, usually through a divorce, a paternity petition or a request for an order establishing parental rights and responsibilities. Courts deciding parental rights matters are regularly called upon to resolve disputes when dedicated, loving, and fit parents are unable to reach agreement regarding their child's path in school, sports or community activities.
Even after a court determines the relationship between a parent and a child, in most cases parents will have shared parental rights and responsibilities. “Shared parental rights and responsibilities” means that most or all aspects of a child's welfare remain the joint responsibility and right of both parents. Parents must confer and make joint decisions regarding the child's welfare.
Think of shared rights as fifty/fifty ownership. One parent cannot make a decision without the other agreeing. This arrangement works until it doesn't. When co-parents disagree, and a school change is looming, something has to happen.
Ultimately if you cannot resolve the situation, you will need the court to break the deadlock. As our state's highest court recently reminded, “Pursuant to the court's award of shared parental rights and responsibilities, all decisions concerning the children remain within the parents' ultimate authority, except where the parents cannot agree.” Although this school choice issue can surface at any time, our district courts continue to set aside some time immediately before the beginning of each new school year expecting to have several “emergency” motions to fix a school choice battle.
Where a child has two available and appropriate parents, but the parents live in different towns, the court must often award primary physical residence to one parent in order to avoid disrupting the child's education. In other words, in order to provide a stable school setting, a court must decide between two capable parents for primary residence during the school week. Our law tells a court what factors to consider to serve as tiebreaker. The best interest of the child factors do not specifically include a school choice section, although it does ask a court to consider the child's adjustment to the child's present home, school and community. That factor is irrelevant when the “present” school is no longer an option.
An attorney can help mediate a negotiated resolution which is likely the best outcome for the child. However, the court must act when the parents cannot resolve their dispute. A court will look at several factors, including what your child might want if (s)he is old enough to have a meaningful preference. Having an experienced and effective attorney guide you through this process can be very comforting and may make a difference in the outcome.