Common School Related Issues in Divorce and Paternity Cases

Multiethnic Group of Children with Back to School ConceptCustody related school issues: When one parent has sole custody of a child, they do not need the other parent’s permission when making major legal decisions for that child, including school related decisions. However, when parents have joint custody of a child and do not agree on, for example, where a child will go to school, there is now a “school issue” in the case.

The court considers a number of factors when making a decision regarding where a child will go to school if the parents cannot agree on a school, such as: where the child primarily resides, how old the child is, how “rooted” the child is in the current school district, what grade the child is in (will there be a natural break in the child’s schooling anyways that would require a change? i.e. Middle school to high school), the child’s involvement in the school, the child’s social life and how it would be affected, the proposed school placement parent’s ability to care for the child before and after school, and the reason the parent is requesting the school choice change (personal or for the child’s benefit).  The court can also consider the proposed school districts and schools themselves as to how they compare to one another.  While the above is not an exhaustive list of what the court can and will consider, this list includes some of the common considerations. Further, this decision is almost always made with the help of a Guardian ad Litem’s recommendation.

To read more on the factors Guardian ad Litem’s and the court considers when making custodial decisions, such as school choice, please see our blog titled “Custodial Issues Regarding School in Wisconsin” at  https://wisconsinfamilylaw.info/2014/07/24/custodial-issues-regarding-school-in-wisconsin/ .

Money related school issues: Another common set of school issues arise when parents are confused or disagree on how much each parent must contribute to school related costs and fees and what exactly qualifies as a “school related cost and fee.”

School related costs and fees are typically considered “variable expenses,” which are expenses that are above and beyond daily expenses and are, therefore, not covered by guideline child support amounts. Determining the percentage of variable expenses that each parent pays is typically determined by the amount of placement that each parent has.  For example, if you have 50% of the placement of your child each year, you likely will pay 50% of the variable expenses for your child; if you have 35% placement of your child, you will likely pay 35% of the variable expenses for your child, and so on. Of course, there are exceptions to this, but this is the general relationship that variable expenses have with placement.

Tuition, registration fees, graduation fees and school supply costs are some examples of what typically qualifies as a “school related cost and fee.” However, when parties do not define exactly what does and does not qualify, parties may disagree about what specific fees and costs require contribution from the other parent.

Often times, an issue comes up where the parties had previously agreed to send their children to private school during the marriage, but one parent no longer agree to same.  If one parent objects to private school on the basis that he or she cannot afford the tuition costs, the court will usually find in that parent’s favor and not force them to pay expensive tuition that they can no longer afford after a divorce.

It is important to include in your divorce agreement detailed language on what percentage of variable expenses, including school fees and costs, that each parent will pay, and what exactly qualifies as a “school fee and cost” to avoid disagreements related to these school issues in the future.

If you have a school issue in your pre- or post-judgment divorce or paternity matter, it is important that you have an attorney help navigate you through these issues. If you wish to meet with one of the attorneys at our office, please call 414-258-1644 to schedule a free half-hour consultation.

 

Custodial Issues Regarding School in Wisconsin

Legal custody can be granted to one parent or both parents.  The court may award joint legal custody to both parents or sole custody to one parent.

The presumption in Wisconsin is that joint legal custody is in the best interests of the child.  Joint legal custody provides both parents an equal opportunity and responsibility to make decisions for the child.  For parents who have joint legal custody, no one parent’s decision is superior to the other parent.  In cases where there is domestic abuse, severe drug or alcohol abuse, mental health issues, or other serious situations where the parties cannot communicate, one parent may be awarded sole legal custody.  The court is very hesitant to grant sole custody unless there is compelling evidence presented that shows eliminating decision-making rights for one parent is in the best interest for the child.

In some cases, the court may award joint legal custody with one parent having final decision making for all or some of the custodial decisions. This is sometimes referred to as “veiled sole custody,” and therefore is not popular with the court unless good reason is given for the request.

Major decisions include, but are not limited to, consent to marry, consent to enter military service, consent to obtain a driver’s licenses, authorization for non-emergency health care, and choice of school or religion.

One of the most controversial custodial decisions is school choice.  When parents no longer reside together, or never did reside together, there are often geographical issues that naturally arise that affect school choice.  For example, one parent may reside in the marital home and in the district where the children have been going to school for a number of years, while the other parent has moved to another county where they believe the children would receive a better education or be afforded better opportunities.  When the parents cannot agree on where the child should go to school, it is likely the court will appoint a Guardian ad Litem to address this issue.  The Guardian ad Litem’s job is to make a recommendation to the court of what he/she believes is in the best interest of the child.

Taking one example, if one parent is exercising primary placement of the child and has been the school placement parent since the parents split up, the court is likely to find it is in the best interest of the child to continue the current placement schedule.  However, if the school placement parent’s work hours change and that parent can no longer take the children to and from school and be there for the children after school, there may be reason for the court to find that a school change would be appropriate and in the best interests of the child.

The court is required to consider a number of factors when deciding the appropriate custodial arrangement for a family.  The extensive list of the required factors is the following:  the wishes of the child’s parents, the wishes of the child, the interaction and relationship with all members of the child’s family, the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future, the child’s adjustment to the home, school, religion and community, the age of the child and the child’s developmental and educational needs at different ages, whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child’s intellectual, physical, or emotional well-being, the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child, the availability of public or private child care services, the cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party, Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party, whether there is evidence that a party engaged in abuse, whether a parent’s significant other, or person residing with them has a criminal record, has engaged in abuse of the child or any other child or neglected the child or any other child, has engaged in interspousal battery, has a significant problem with alcohol or drug abuse, the reports of appropriate professionals if admitted into evidence and such other factors as the court may in each individual case determine to be relevant.

When the court is consider making a school choice decision, there are usually a number of other considerations included in a court’s ultimate determination.  For example, where the child primarily resides, how old the child is, how “rooted” the child is in the current school district, what grade the child is in (will there be a natural break in the child’s schooling anyways that would require a change? i.e. Middle school to high school), the child’s involvement in the school, the child’s social life and how it would be affected, the proposed school placement parent’s ability to care for the child before and after school, and the reason the parent is requesting the school choice change (personal or for the child’s benefit).  The aforementioned is not an exhaustive list of what the court can and will consider, but includes some common considerations.

Please note, while many parties focus on school ratings, the court does not typically focus on same.  The reason being, the evidence brought forward regarding school ratings (unless very drastic) is often being used by the parents to further a different underlying motivation for the school change.

Please be advised, if the school you wish to have your child attend would require you to move more than 150 miles for more than 90 days, then you have to notify the other party and wait to see if the other party objects to same.  For more information on this specific topic, please see our blog about  moving with a child at https://wisconsinfamilylaw.info/category/custody-and-placement/.