How to Decide What School Children Will Attend
The Public vs. Private Debate
Another school year is quickly approaching, if not already started for most children. With the ringing in of the 2012-2013 school year, conversations regarding children’s schooling and where children will attend school come to the forefront in domestic law cases.
Where a child will attend school is a choice made by the parent(s) with legal custody. In many cases, divorced parents or parents who are involved in paternity actions share joint legal custody. Under joint legal custody, both parents have a say in matters of education, religion, and medical choices for the child1.
However, if the parents are unable to effectively co-parent or it is otherwise determined that only one parent will have sole legal custody, the issues of education, religion, and medical choices for the child fall to the parent with sole legal custody.
When parents share joint legal custody, one potential speed bump in the education choices may be where the child should attend school. Today, there are so many choices as to schooling. Schools can cater to the specific interests and talents of children, may be conducted in another language to promote the learning of a second language, may be a private school, or even may be online.
One very primary concern in determining to send the child to public verses private school is the expense associated with a private school, irrespective of the parties sole or joint legal custody. Even if the parties agree that a private education is necessary for a child, the expense and division thereof, or the ability of a parent to pay the expense in addition to child support is at issue.
The standard utilized by the court, as always, is determining what is in the child’s best interest. Parents, or the court if the parties disagree, may need to consider several factors that would account for what is in their child’s best interest. For example, a child who needs to be challenged may enjoy a language emersion program or a child with special needs may need the more individualized attention, or smaller class size, of a private school.
Knowing the child’s specific needs or circumstances, is the key to determining what is in the child’s best interests. There are several resources to assist in determining the child’s needs, including the school, counselors, an IEP, psychological evaluation, a PhD custody evaluator, treating physician or psychologist.
Even with assistance from other sources, in determining the need or best interests of the child, both parents may still not agree on the same educational path. If this occurs, it may be necessary (if working through the disagreement together does not work) to utilize mediation, a parenting coordinator, or if all else fails, go to court and allow a Judge to determine the best interests of the child.
Whether it is determined by the parties, by a parenting coordinator, or the court that private school is in the best interests of the child, then the issue becomes that of payment for the private education. The expense is typically divided based upon the incomes of the parties, much as child support is, utilizing a pro-rata percentage division as with uninsured medical expenses. A link to a recent unpublished decision is provided to illustrate the Court’s determination of public versus private and the division of the expense for private2. In the case, the trial court ordered one parent to pay 100% of the private education expense and this portion of the court order was remanded back to the trial court. If the Court orders a division other than one that is roughly proportional to the parties incomes, then a finding is required to explain why this would be unjust3.
As the new school year begins, we hope that this blog post has been informative as to the legal custody determination regarding education and resources to assist in the decision of public versus private education for the best interests of a child. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorneys, Julie Dixon and Jessica Keyes.
