Paying for Private School When Parents Disagree – Part I

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody, Child Support, and Private School on Wednesday September 4, 2013

Parents even in intact families can disagree about whether to invest in private or parochial education. Parents will have different reasons for attending private school, from a belief that it provides an academic advantage, to addressing specific educational needs, to fostering religious identification or simply following a family tradition. In the intact family, disagreements about private school get resolved at the dinner table; in divorced families, such disagreements often wind up as a return to the courthouse.

In Missouri, when parents share joint legal custody, unless both parents agree to have their child attend private school, the child cannot attend private school unless the divorce decree has a mediation provision that would address this situation. If even after mediation the parents cannot agree, the child will remain in public school unless (a) the parent opposed to private school will agree to allow the child to attend private school only if the other parent pays all of the tuition, or (b) the parent seeking private school decides to return to court by filing a motion to modify.

What if one parent has sole legal custody? In that situation, that parent can decide to enroll the child in private school regardless of the objection of the other parent. However, unless the decree addresses payment of private school directly, the parent choosing private school has no means to force the other parent to contribute to paying for private school without filing a motion to modify.

As a very general rule, Missouri courts take the view that a parent that objects to the child attending private school need not contribute to the payment of the tuition for private school, even when the other parent has sole legal custody. In essence, Missouri courts start from the premise that public schools provide adequate academic environments.

Now let’s consider the following scenario. Two parents have joint legal custody and reside in a low performing but still accredited public school district. Their child has tested at the gifted level and is far ahead of his class. Unfortunately, because of the funding and staffing in the district, the child cannot receive sufficient gifted education. Concerned the child will regress out of boredom and inattention, one parent looks to other options, including (a) transferring to an elite public school that has strong gifted programming and would give a tuition reduction, (b) transferring to a Montessori based school that could meet the needs of a gifted child, and (c) transferring to one of several private schools that have gifted track programming. All of these options will be in the best interests of the minor child, and all will require some tuition payment.

In this scenario, one parent strenuously argues that the public school environment meets the child’s needs and believes the tuition at any other school unjustified or perhaps out of reach financially. The parent seeking the move cannot afford the tuition alone. Does this parent have any remedy?

This parent could file a motion to modify and allege that the child is actually being harmed by remaining in an underperforming district that lacks the staffing and curriculum to provide adequate instruction to a gifted child, and that without a move, by the time the child reaches middle school, the child may have suffered irreparable harm in academic progress. A future Rhodes scholar may become so turned off that the doorway to great colleges would be closed. The parent would have to have sufficient evidence to support this claim, including expert testimony and psychoeducational testing. The parent would ask to modify child support by deeming the private school a necessary additional expense in the Form 14 calculation. The court would consider the issue from the perspective of the best interests of the child, and would have to balance the academic needs with the parents’ ability to pay. If the parent seeking private school can meet the burden of proof and the other parent has some ability to contribute, the court in that case could find for the parent and modify child support to allow for the private school option.

In our next post we will discuss the case of children with special needs and private schools.

If you have questions about sending your child to private school when the other parent opposes that move, contact us – we can help.

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