After a divorce, parents may no longer both live in the school district where the children were attending school before the divorce. In most cases, it may seem advantageous to keep the children in the same school to maintain stability, but there may be equally convincing reasons why now would be a good time for the kids to switch schools (for instance, if one parent moves to a neighborhood with a better school, or if a switch needs to be made between public school and private school). In some divorces, the issue of schooling does not apply at the time of the divorce but may come up some years later when the children reach school-age. How is the decision made where the children will go to school? Does the parent with primary custody get to make the choice, or does the law require that both parents make the decision jointly? If so, what if they don’t agree?
Legal v. Physical Custody
When dealing with child custody issues, it is important to understand that there are two different types of custody – physical and legal custody. Physical custody refers to the responsibility of the parent to care for and provide a home for the children. Legal custody, on the other hand, refers to the right and responsibility to make decisions regarding the children’s upbringing, including matters of religion, health care, and yes, education.
So the decision regarding the children’s education depends largely upon the legal custody which is granted in the divorce. Like physical custody, legal custody may be shared jointly or placed solely with one parent. Also, as with physical custody, some form of joint legal custody is generally favored by the courts, unless there is some compelling reason to grant sole custody.
But wait, there’s more
But our inquiry doesn’t end there, because joint custody doesn’t mean mutual consent is always required. According to California Family Code section 3083, the court when making an order of joint legal custody is required to specify the circumstances under which the consent of both parents is required, as well as the consequences of the failure to obtain mutual consent. The law goes on to state that in all other circumstances, “either parent acting alone may exercise legal control of the child.” It appears then, that if the judge does not address education as a matter requiring mutual agreement, one parent could make a unilateral decision regarding where the children go to school. How that would actually work if the other parent objects remains to be seen. What would stop the other parent from also “acting alone” and reversing the decision of the first parent, a process which could continue ad infinitum?
Unless the parties really want to go to court and fight over every issue that arises, it is important during the divorce to make sure the joint custody order specifically includes all conceivable matters requiring joint consent, especially the obvious ones such as education, health care and religion. Keep in mind that education matters can include not only where the child goes to school but also what extracurricular activities the child may engage in and other school-related issues. The custody order can require that these decisions be made jointly and can provide a mechanism to resolve the dispute if the parents can’t agree. An obvious choice is to refer the matter to mediation facilitated by a trained mediator who is also a family law attorney or is well-versed in family law mediation.
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