Court of Appeals Weighs in on Private School Choice

Court of Appeals Weighs in on Private School Choice

The Court of Appeals, ruling on a Petition for Special Action, found that the Superior Court has authority to order an objecting parent to pay private school tuition, even for a private religious school, if that school placement is found to be in the child’s best interests. Jordan v. Rea, 1 CA-SA 09-0007 (May 28, 2009)  Download JordanSchoolChoiceCase


Further, the Court of Appeals set the standard for the Court to choose a child’s school, where the parents cannot agree, and that standard is the child’s best interests.   This Opinion’s three major findings are:


(1)   The superior court is to apply a best interests standard when parents obligated to work together are unable to reach agreement as to school placement; (2) A private religious school may not be precluded from consideration as the child’s school placement merely because it is a private religious school; and (3) The superior court has authority to order an objecting parent to pay child support for the school placement that is determined to be in the best interests of the child even if it is a private religious school.


The parenting plan in his case contained a provision which is ommon to many plans: “Both parents shall make all major educational decisions together for the children.”   


A key point to this opinion is that the children of the parties were already attending a religious private school at the time of the Superior Court’s ruling.  The older child had started at private school and was in fifth grade there at the time of the divorce; the younger child had started at the private school as a kindergartener while the divorce was pending.  The importance of that fact is highlighted in Footnote 3, which states:   “We further conclude that the trial court erred by ruling that the re-enrollment of the children in the same school they had been attending for several years constituted a new “major educational decision” that required the consent of both Mother and Father. To the contrary, Father apparently had originally consented to the children’s attendance at the religious school. Now, he has changed his mind and wants the children to attend a public school. Therefore, it is Father, rather than Mother, who wishes to reach a new “major educational decision” under the terms of the parenting plan, and without Mother’s agreement, it is Father who has the burden to show that his proposed change in the children’s school is in their best interests.”


The Court of Appeals disposed of the obvious constitutional argument by relying on the parties’ inability to agree on this issue:


Father objects to applying this standard on the basis that it interferes with his constitutional right to direct the upbringing of his child.    What Father’s argument does not accommodate is that each parent has a constitutional right to the upbringing of his or her child. [Citation omitted]   In this case, however, each parent has chosen to exercise that constitutional right in a different manner. Consequently, the court is called upon to resolve that conflict. In such a setting, there is no usurpation by the court of either parent’s constitutional rights.


This opinion pulled the specific criteria for a custody award from ARS 25-320, replacing that statute’s reference to “custody” with “school placement” for purposes of this opinion.   The opinion then adds additional criteria to be used for the school determination, as follows:

Arizona trial courts should consider [the following factors] when applicable and as the circumstances warrant: (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 21 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 Court concluded by noting that a finding that private school attendance is in the child’s best interests does not necessarily mandate that the objecting parent participate in tuition, as payment of private school tuition requires a different standard.  The Child Support Guidelines require that each parent’s ability to pay be considered.   The Court recognized that in a case where private school tuition is considered in the child’s best interests, it is likely that the tuition amount will be factored into the child support amount, but a situation could exist where a parent’s ability to pay does not support including tuition in the child support amount.


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

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