What Will the Court Do if We Can’t Agree on a School?

by Annette Burns on May 23, 2016

Parents with joint legal decision-making rights face this issue all the time.  What if the parents can’t agree on what school the child will attend?   This comes up when a child is first starting kindergarten, again when middle school is imminent, and again for high school.

First, in Arizona, is this a decision the court will or should make?   If the court is wiling to consider making this decision, what factors will the court look at?  This post talks about the latter.  A separate post will discuss why the court might refuse to make this decision for the parents and what will happen instead.

The Arizona Court of Appeals decision in 2009 in Jordan v. Rea is decision on a Special Action petition.  This decision answers three questions:  (a) What standard is the superior court to apply when divorced parents who are to work jointly to decide on a school just can’t agree? (2) May a child be precluded from attending a private religious school solely because one parent objects on religious grounds? and (3) May a parent be required to pay tuition for a private religious school as part of his or her child support obligation, even if s/he doesn’t agree with the school?

The answer to question 2 regarding private religious school is “no” (a child may not be precluded from private religious school simply because one parent objects on religious grounds; and “maybe” regarding the inclusion of private school tuition in a child support calculation (with certain specific restrictions).   The standard to be met in order for a court to consider and order private religious school is so high (per this decision) that it may not be met in most cases, but it needs to at least be considered by the court.

It’s significant that in Jordan, the children involved had attended a private religious school, by agreement of the parents, from the time the children had started in kindergarten.   One child was in 5th grade at the time of the court case, the other in 2nd grade.  The 2nd grader had started at the private school after the parents’ divorce.   Father objected to the continuation of private school and requested a child support modification.  Mother requested, as part of the modification, that the school’s $850 per month tuition be included in the child support calculation so she could keep them in that school.  Inclusion of tuition in the CS amount would have resulted in each parent paying for tuition in proportion to his and her income.

The Court of Appeals acknowledged some procedural issues in the case, but accepted special action jurisdiction because significant threshold questions were raised which were both purely legal and of statewide importance.

The trial court had rejected private school outright because there was a “religious preference” clause in the parenting plan.  This gave each parent the right to raise the children in the religion of his or her choice, so the trial court said it wouldn’t force a parent to send a child to private religious schoolb By rejecting Mother’s school choice solely because it was a religious school, the trial court had given Father “veto power” over Mother’s selection, in deference to Father’s religious preference.  The Court of Appeals said this was wrong.

Once the Court of Appeals determined that private school could not be rejected solely on religious grounds, it turned to the appropriate standard for choosing a school, where parents with equal, joint legal decision-making rights cannot agree.   After first establishing that the court must apply the best interests standard, the specific applicable factors were noted (taking the first four directly from ARS 25-403 language):

1) the wishes of the parents as to [school placement];

2) the wishes of the child as to [school placement];

3) the interaction and interrelationship of the child with [persons at the school] who may significantly affect the child’s best interests; and

4) the child’s adjustment to [any present school placement].

Expanding on those factors, the court also noted that the trial court must consider, if relevant:

(1) the child’s educational needs; (2) the qualifications of the teachers at each school; (3) the curriculum used and method of teaching at each school; (4) the child’s performance in each school; (5) whether the proposed or current school situation complies with state law; (6) whether one school is more suitable given the child’s medical condition or other special needs; (7) whether one school would allow the child to maintain ties to a nonresidential parent’s religious beliefs; (8) whether requiring the child to leave the child’s current school would aggravate the difficulties of the divorce; and (9) whether continuing in a particular school would be essential or beneficial to the child’s welfare.

The next post will talk about how Jordan v. Rea resolved the tuition and child support question.

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