When choice of schools impacts custody

 Family law attorneys are seeing more cases recently having to do with parents' disagreements about which school or school district is appropriate for the parties' children. Parents who have joint legal custody of a child must agree upon important decisions that affect the child’s welfare. Bowers v VanderMeulen-Bowers, 278 Mich App 287, 295-296 (2008). One of those important decisions is the child’s placement in a particular school. Id. at 296. “If [the parents] are unable to agree, the trial court must resolve the dispute according to [the child’s] best interest.” Id.

In a recent case, the parents had joint legal and joint physical custody, alternating week on/week off. It was their child, Nicholas, who expressed a desire to be a boarding student at Cranbrook, and he was awarded a scholarship covering 70% of the cost. Under Michigan law, a child's preference is not, in and of itself, sufficient for a change in custody.

The father in this case challenged the trial court's decision to permit Nicholas to attend school as a boarding student, claiming that there was no evidence that attending Cranbrook was going to be beneficial to the child or that there had been any evidence at the hearing of any benefits. But the court of appeals disagreed, stating:

In fact, the testimony consistently stated that attendance at Cranbrook would give
Nicholas a better education than he could get anywhere else, a résumé that would more likely grab the attention of “Ivy League” schools if seeking attendance there, and a superior education. Presumably, plaintiff relies on the fact that on cross-examination, most witnesses conceded that there were “no guarantees” and that any advantages conferred by Cranbrook attendance would depend on whether Nicholas applied himself.

Cranbrook was simply a better school for Nicholas and would expand his future possibilities,
may not have been enough by itself to establish by clear and convincing evidence that Cranbrook attendance was in Nicholas’s best interests. However, the trial court’s factual findings were not against the great weight of the evidence, and it was not error for the trial court to rely on them in addition to Nicholas’s preferences.

The trial court's findings of fact on the best interests factors found both parents equal except for Nicholas' preference. The court of appeals affirmed the trial court when it changed the established custodial environment of joint physical custody and permitted the child to live at Cranbrook School as a boarder primarily based on the preferences of the child. The Court indicated that here the child was manipulating the parents, rather than one of the parents manipulating the child, an occurrence in many cases where the child's preference is an issue. 

You may read Chizmadia v Chizmadia here.

Lombardo v Lombardo, an earlier case related to school choice, may be read here,

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Comments

[Jeanne M. Hannah]

Lisa, yes, there are cases involving those facts. The case that this post discusses (the Chizmadia case) is just one such case. If you and your ex-husband cannot agree then a judge may have to make that decision for you. The best way to prevail is to keep careful documentation and also to ensure that you have some testimony by a professional (teacher and/or child development specialist)who is familiar with your child and can testify as to what will suit her needs best.

Some children are fine being among the youngest in the class, but it surely would not hurt to wait a year. Most teachers would probably agree unless your child is so bright that she is bored. Socialization is far more important that academic achievement.

I suggest that you make it a point to see "Race to Nowhere" and urge your ex to see it, too. You can read about that film here. http://tinyurl.com/3x3adlr

[Lisa]

Are there any case examples of parents that have joint legal and joint physical custody, parenting time is even, and the parents can not agree on school? Ex and I disagree about enrolling our daughter into kindergarten. She will just turn 5 this fall, but is excelling in her preschool. Her preschool would be the same school she would attend for kindergarten. Ex wants her to take Young 5's program and change her school. We can not agree, probably going to end up in court.

[Jeanne M Hannah]

Thanks, Tim, for reminding me of Hoeve v Hoeve http://tinyurl.com/yee53lp. In that recent case, the Court of Appeals decisions held that the parents' school-district decision may be, by itself, proper cause to change custody. In Hoeve,the parents lived about 70-miles apart and as a pre-schooler, the child alternated week-on-week-off between the mother and father. Father sought and was awarded sole physical custody, however, once the child became eligible for kindergarten and the court of appeals affirmed.

Family law appellate attorney Scott Bassett says that the Hoeve case suggests that parental school choice disputes is the "new frontier" in child custody litigation.

You may read Tim Flynn's excellent family law blog here: http://electronicdivorceattorney.blogspot.com/

[Timothy P. Flynn]

Jeanne: Great post. I did a custody update post back in January that focused on some of the school impact caselaw. Always useful reading your posts. Keep them coming.