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School Choice – Who Makes It?

It is August and we are inching towards the school year starting for children. I receive numerous questions from clients and others this time of year, about who gets to decide where children will attend school. It is a frequent battle ground for divorced parents where they disagree on which school their children should attend. It is a difficult area of the law and one in which there are not always a lot of good answers.

Under Wisconsin’s joint custody statute, sec. 767.001 (1s), “joint legal custody” means the condition under which both parties share legal custody and neither party’s legal custody rights are superior, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order. Under sec. 767.001 (2m), “major decisions” includes, but is not limited to decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for nonemergency health care and choice of school and religion. (emphasis added).

Under the custody statute, sec. 767.41 (2) (am), except as provided in par. (d), the court shall presume that joint legal custody is in the best interest of a minor child.

So, what happens when parents disagree where the children should attend school? The usual arguments are that one school system is superior to the other, or it is more convenient for the children to attend the school that is closer to one home than the other. There are also many other factors that the court would consider if there is a dispute about the choice of school; (a) the age of the children (b) the placement arrangement involving the children (c) if the child has any special needs or educational requirements (d) the parties previous ability to cooperate and get along for the sake of the children. (e) whether either parent needs before or after day care that may affect where the child goes to school, (f) extra- curricular activities that the child may be involved with, (g) each parent’s work requirements in terms of hours and location and how that affects their ability to either drop the children off at school or pick them up at the end of the day, and perhaps other factors not specifically enumerated herein.

It is clear that if parents have joint legal custody, one parent cannot unilaterally decide where the child is going to go school over the objections of the other parent. Courts do not like it when parties “self-help.” So, where there appears to be a legitimate dispute about where a child is going to go to school, it is best to try to address that as soon as possible. August is the wrong time to start legally addressing such an issue, as many times, it takes 30-45 days to obtain an initial court date, and depending on the course of litigation, could take 3-6 months to come to a conclusion of the issue after a contested hearing. Where a parent anticipates a legitimate choice of school battle, they should start initiating legal proceedings in the preceding Spring before the school year starts in September.

The process would involve a parent first trying to talk about school choice with the other parent. If there is a clear disagreement and each parent wants their own way, a post judgment motion may be filed to request the court address the choice of school; This motion may also consider asking the court to terminate joint custody and award sole custody to the parent making educational choices alone going forward, or may also involve asking the court to modify the placement schedule. Keep in mind, you cannot file a motion within 2 years from the initial orders that either substantially modifies custody or placement, unless the children are in imminent physical or emotional danger. A choice of school dispute would not fall within that category. After two years, either party can file such a motion, but there is a legal presumption, that everything should be left the same.

Some counties require mediation prior to filing a motion. Check your court papers to make sure that you are not required to first go through mediation prior to initiating a court action. If there is no such requirement either by local court rule or in your papers, you are free to file the motion with the court to address the issue. The court is going to order mediation first anyhow, prior to hearing the motion. This will involve your being required to sit down with the other parent and with a mediator to try to see if the issue can be resolved. Sometimes these cases can be resolved on the parties’ compromising or instead of fighting about choice of school, agreeing that the children will attend private or parochial school. If mediation solves the case, the mediator will send a letter to the court, both parties will sign and there may have to be a formal stipulation and order drafted on the choice of school.

Presumably, mediation is not going to work on a case like this and the court will then decide if the issue is serious enough that a guardian ad litem should be appointed to advocate for the child’s best interest. If so, the court appointed attorney will meet both parents, the child, if age appropriate, and talk to collateral sources that may weigh in on the guardian ad litem’s recommendation on where the child should attend school.

If the court has to make a decision on choice of school, rather than the court deciding one school over the other, the court may decide to terminate joint custody and order that one parent have sole custody (sole decision making), in this case, on educational decisions. This is a harsh result to litigation over the issue of choice of school. The court has authority to do so under sec. 767.41 (2) after considering the factors such as a. One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child. B. One or more conditions exist at that time that would substantially interfere with the exercise of joint legal custody. C. The parties will not be able to cooperate in the future decision making required under an award of joint legal custody.

Post judgment litigation over choice of school can be lengthy and expensive. Courts may perceive such fights as petty and selfish. Courts are going to demand that parties mediate such a dispute and try to resolve it on their own. If parties cannot, the court has the right to appoint a guardian ad litem to make recommendations to the court. At a contested trial on the issue, the court could simply consider where the child goes to school, but the court can also end joint custody and allow one parent to make all decisions in the future regarding education. It is for that reason, before plunging yourself into a costly and drawn out post judgment battle, you should do everything you can to try to brain storm a solution on your own with the other parent to resolve the issue of where your children will attend school.

Do you have questions about joint custody? Placement? Divorce? Contact one of our experienced family lawyers for an initial consultation. The law firm of Karp & Iancu, S.C. has provided expert family law representation for over 34 years.

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