The economy is reopening and most people in Arizona anticipate that come fall, schools will be back to live learning also.  Some schools may still give parents a choice of remote learning or live learning.  If the Covid numbers continue to decline and the rate of vaccinations, especially for children, increase, it may be that many schools will offer only a live curriculum.

For many reasons, parents disagree about which school the child will go to and also whether the child or children should continue in remote learning or go back to school full time live on campus.  If one parent has sole legal decision-making the law is fairly clear that they get to make that decision.  Likewise, if the parents have joint legal decision-making but one parent has final say, then again, it is fairly clear that they get to make the choice after consulting with the other parent.

Problems arises when the parents have joint legal decision-making with no tie-breaking vote.  If the child or children are already in an established school, and the child continues to be eligible to attend that school, then in most cases neither parent can change the school without the consent of the other parent or a new court order.  If a parent wants to change schools, then they usually have to go back to court and have a contested hearing.  Likewise, if the parents agree on the school but have a disagreement about whether the children should engage in remote learning or live learning, and they have no tie-breaking vote, then they usually have to go back to court and have a contested hearing.

A parent may want to change schools for many reasons.  Some reasons are: because they have remarried and their stepchildren go to another school; they have purchased a new home and now are very far away from the current school and would prefer to have a school that is closer to their home; the child is having trouble at the current school with bullying; the child is going to a private school by agreement of the parties but one parent or the other cannot afford the tuition anymore and wants to switch to a public school or charter school; or they believe the quality of the school is poor and there is a better school nearby.  These are just some of the main reasons in my experience that parents want to change schools but there certainly are others.

There was some controversy in 2018 and 2019 created by some appellate decisions as to whether the court could step in and make the school choice decision when joint custody parents disagreed.  However, the Arizona Supreme Court issued a ruling making it clear that the courts did have the right to make a school decision if joint custody parents could not agree.  The case is Paul E. v. Courtney F, 22 Ariz. 46, __P3d __ (2019).  That case overturned a lower court decision that created controversy about whether courts could solve disputes about school choice.  The court specifically stated the following: “When an impasse occurs, the court is authorized to determine not only the parenting plan element in dispute, but also ‘other factors that are necessary to promote and protect the emotional and physical health of the child.’  25-403.02 (D); see also Jordan v. Rea, 221 Arizona 581, 589, at paragraph 19-20 (App. 2009) (concluding that former, identical version of 25-403.02 (D) authorized the Family Court to apply best interest standards to resolve parents’ disagreement about which school children should attend).”  (Emphasis added.)

The Arizona Supreme Court, by the language above, made it clear that Jordan v. Rea, 221 Ariz. 580, 212 P. 3rd 919 (App.2009) is the accepted law in Arizona on the issue of the court’s involvement in school choice.

How Will the Court Decide School Choice?

Jordan v. Rea gives significant guidance to the trial court on how that decision should be made.  First, the court made clear that just because one parent wanted the child to go to a religious school, that choice was not automatically off the table (unless the parenting plan specifically precluded such a choice). The court stated that the primary and overriding consideration should be the welfare and best interest of the child.  This should not preclude the possibility of the child going to a religious school.

Factors the Court Considers

The court went on to state that the court should consider all important factors regarding the best interest of the child.  However, it listed several specific factors that the court should consider when dealing with school choice.  Those factors are as follows:

  • The wishes of the child’s parents as to school placement
  • The wishes of the child as to school placement
  • The interaction and interrelationship of the child with persons at the school who may significantly affect the child’s best interest (presuming that the child has already been going to a particular school)
  • The child’s adjustment to the present school placement
  • The child’s educational needs
  • The qualifications of the teachers
  • The curriculum used and the methods of teaching at each school
  • The child’s performance in each school
  • Whether the school complies with state law
  • Whether one school is more suitable given the child’s medical needs or other special needs
  • Whether one school would allow the child to maintain ties to a parent’s religious beliefs
  • Whether requiring the child to leave the current school would increase the difficulties of the divorce
  • Whether continuing in a particular school would be essential or beneficial to the child’s welfare

This case was issued well before the Covid crisis and does not give any guidance as to how a court would choose between remote learning and in person schooling.  Based on my experience of having litigated this issue, the best I can say is that it is a rapidly changing landscape.  When Covid rates were high and one or both of the parents were available to be home with the child during the day, the courts leaned heavily towards remote learning.  Now, with significant evidence of the heavy mental health toll remote learning has imposed on many children and the fact that many children are struggling with remote learning, the tide is turning.  This is especially true with Covid numbers down, most teachers and parents are vaccinated and the fact that in the very near future, many students will be vaccinated.

Lastly, it is important to understand that it can often take 2 to 4 months to get a hearing on this issue before the court.  Many times parents wait until mid-summer to bring this to the attention of the lawyer and it is very hard to get into court before school starts.  Sometimes parents can choose a private mediator or come to an interim agreement until the court makes a final decision.

Feel free to call the law office of Robert Barrasso for a free 15 minute consultation which can help you decide whether it is realistic to have a court hearing on school choice issues and if so, what factors will help you succeed.

Call Now Button

Pin It on Pinterest

Share This