What Does the Court Do About Choosing a School? Part 2

by Annette Burns on May 25, 2016

Continuing from the 5/23 post on Jordan v. Rea, about how an Arizona court will choose a school if the parents can’t agree, this is Jordan’s discussion of how private school tuition factors into the decision.

When choosing a school, the issue of including private school tuition in the child support calculation must also be considered.   In Jordan v. Rea, the Court of Appeals found that including tuition in child support might be appropriate in some cases:   ” [I]t would seem unlikely that, if it were in the best interests of the children to continue attending (or be placed in) a private religious school, those expenses would not be factored into the child support equation. The exception to this may be when, even though it is in the child’s best interests to attend a private religious school, it is still not consistent with ‘the ability of the parents to pay.'”  [citing the Arizona Child Support Guidelines]

Thus, the Jordan ruling left open the possibility that an order for attendance at a private school might also require that the tuition be included in the child support calculation, subject to an argument that tuition is not within the ability of the parents (or one parent) to pay.

“The family court then has the ability, notwithstanding the lack of agreement by a parent, to order the objecting parent to pay the costs of tuition if the court determines that the tuition costs are “reasonable and necessary.” Guideline 9(B)(2).   The question of what is “reasonable and necessary” is within the sound discretion of the family court.”

” . . . . if the trial court concludes that it is in the child’s best interests to attend a private religious school, the trial court may also determine that such expenses are “reasonable and necessary” and order a parent to participate in paying for them, notwithstanding the parent’s objection. There is no constitutional impediment to such an order. See supra ¶ 30. As noted at the outset, however, the trial court may also decline to order these expenses based on “the ability [or inability] of parents to pay.” Guideline 1(A).”

In practice, when the parent promoting private school attendance (whether religious in nature or not) is willing to pay 100% of the tuition and related school costs, the issue often becomes moot and the other parent agrees to the private school, without any financial obligation.    It remains to be seen if trial courts will order a nonconsenting parent to pay for private school, through child support orders, and how difficult it will be to show both that the tuition is “reasonable and necessary” for the children, as well as “within the parent’s ability to pay”.

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