Each year, summer seems to turn to fall with a greater vengeance; back-to-school ads start sooner; pre-season football takes over the airwaves; even the weather seems to turn cooler sooner.
And, for many school students, the school year has crept into mid-August. For intact families, the new school year is filled with anticipation and excitement. But for separated or divorced families, the coming school year can be a battleground for a host of disputes.
Of course, the biggest battle of all may be where the children will go to school. Because of the mobility of society, it is not a given that separated parents will live the same school district. Myriad factors go into where parents decide to relocate, such as the cost of housing, where other family members or new spouses live, or the availability of employment.
Accordingly, if a dispute over custody is in the offing, each parent should start thinking about where their children will go to school from the outset.
School choice is of course often dependent on where the parents live. If the dispute involves two public school systems, the Pennsylvania Administrative Code (22 Pa. Code § 11.11(a)(1)) provides as follows:
A school age child is entitled to attend the public schools of the child’s district of residence. A child’s district of residence is that in which the parents or the guardian resides. When the parents reside in different school districts due to separation, divorce or other reason, the child may attend school in the district of residence of the parent with whom the child lives for a majority of the time, unless a court order or court approved custody agreement specifies otherwise. If the parents have joint custody and time is evenly divided, the parents may choose which of the two school districts the child will enroll for the school year.
But geography is only part of the equation. When the parents live in separate school districts and cannot decide where to enroll the children, the issue typically must be resolved by the courts, as children must go to school somewhere.
In such a dispute, the court typically does not pick one school or the other; rather, the judge must decide which parent will be assigned the legal authority to make the decision. In other words, the court must decide which parent will be awarded legal custody regarding educational decision-making.
Custody cases are laborious. If it is an initial custody case (meaning there is no prior custody court order), the parties will often be required to go through several steps before the court issues a decision. In Allegheny County, these steps include going through the Generations Program which entails an educational seminar and one session with a mediator before the assigned judge holds a Custody Conciliation (basically another mediation), all prior to the matter going to trial.
In the normal course, a custody case takes several months to go from start to finish. As such, any parent contemplating a challenge to their children’s school placement must plan months in advance if the court is to be allowed to make the decision before the start of school in August.
Put bluntly, a school choice-related custody case must be filed by at least January or February of that year, and even this could be late, especially if there are complicated issues like a child with special needs.
It is well known that family judges hate nothing more than parents coming to court in August with emergency school placement petitions; the parent asking for such relief probably can’t do much more to stack the deck against him or herself.
Indeed, the issue of legal custody—which the court must analyze in determining which parent will pick the school—is largely determined by which parent has better parental judgment, makes better child-focused decisions, and is able to involve the other parent in decision-making.
In practice, this means that presenting a successful claim for legal custody regarding educational decision-making involves at least some of the following:
- Demonstrating a knowledge of the desired school system, with evidence of research of both school options, including school activities, extracurricular activities around the school, and childcare options, if relevant;
- Demonstrating an involvement of the other parent in the school investigation, including an early written (email) notice about the choice, invitations to visit the school, and sharing of information about the school;
- A knowledge of and sensitivity to logistical and transportation challenges, such as the availability of busing, travel times, traffic issues, parental work schedules, childcare hours, and the like; and
- An ability to articulate reasons why the desired school will be a good fit for the child or children at issue.
At the end of the day, many school disputes involve similar schools with similar opportunities, where the children will likely do well in either district.
What will set one parent apart from the other is the ability to demonstrate a focus on the best interests of the child, which is the ultimate standard by which custody cases must be determined. The parent that waits until the last minute has already largely failed by this critical measure.