Determination of which parent has final decision-making authority over a child’s education depends on several factors. In many states, joint custody is generally categorized into legal custody and physical custody. Depending on where you reside, the first thing to evaluate is the type of joint custody you have. Legal custody may grant equal decision-making authority to both parents with respect to education, health care, religion, and other matters. If the parents disagree over a child’s education in such an arrangement, they may have to resort to legal proceedings such as mediation, arbitration, or even a trial to determine which parent has the ultimate say in educational decision-making. In such proceedings, most jurisdictions will focus on the “best interest” standard to determine which option is best for the child.
In some states, legal custody may be divided into zones of decision making, and a court may grant sole educational decision-making authority to a parent. Here in Illinois, where I practice, parents with joint legal custody are required to enter into a Joint Parenting Agreement, which sets forth each parent’s powers, rights and responsibilities. 750 ILCS 5/602.1. In addition, the agreement must specify a resolution mechanism for potential disputes and alleged breaches. Id. In contrast, in Arizona, in joint custody cases, parents must submit a plan with regard to educational decisions for the child. Jordan v. Rea, 221 Ariz. 581, 589 (Ct. App. 2009). If the parents are unable to agree on any aspect of that plan, a court will make that determination. Ariz. Rev. Stat. Ann. § 25-403.02.
In some states, in joint physical custody situations, a parent may not have the legal authority to decide matters such as education. Even if the parent does not have legal custody, it may be possible for him or her to have the ultimate educational decision-making authority if a court finds that parent’s authority to be in the “best interest” of the child based on a multitude of factors, including parent’s professional expertise and demonstrated greater interest in education. In a recent New York case, where the custodial parent had a strong preference for a private-school education, the court granted the educational authority to the noncustodial parent, and it noted that the custodial parent failed to demonstrate that the private school was a better choice for the child. Jacobs v. Young, 107 A.D.3d 896, 897 (N.Y. App. Div. 2013).
In another New York case, the court granted final authority in regard to educational matters to the father who didn’t have legal custody because the mother was found to be a hindrance who was not advancing her son’s best interest. Frize v. Frize, 266 A.D.2d 753, 756-57 (N.Y. App. Div. 1999). However, many courts may defer to a parent with legal custody and may deny a noncustodial parent the right to “control” educational decisions.
Ultimately, both parents should set aside their differences and strive to work together to determine what is best for the child. If that is not possible, one may have to turn to available legal avenues.
This post was written by Thomas T. Field: Family Law Partner