Paying for Private School When Parents Disagree – Part II

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody, Child Support, and Private School on Friday September 6, 2013

In our last post we discussed the basic outline of Missouri law regarding disputes over sending a child to private school over the objection of the other parent and the ability of the parent seeking private school to make the objecting parent contribute some or even all of the tuition.  We noted how Missouri generally leaves parties to agree to private schools in the original decree, but in the absence of that agreement, will show a preference for public schools unless a parent shows a compelling need for private school that would warrant making the objecting parent liable for some of the tuition.  We discussed the case of a gifted child having unmet needs in an underperforming school district.

Now let’s consider the most common situation we see with regard to private school disputes – the case of the special needs child.  A child with some type of disability, from mild learning disorders to severe autism to genetic disorders that render the child wheelchair bound and speech impaired, have a legal right to public education and federal law prohibits discriminating against these children.  As a result, all public school districts have a separate branch, the Special School District (SSD), to handle the array of special needs.  A team of staff members will conduct an initial evaluation and determine the level of services needed, from simple accommodations like extra time, to more intensive needs such as a staffer assigned to work solely with one student throughout the school day, sometimes in regular classrooms with other students, sometimes only alone.  The school will draw up an Individual Educational Plan (IEP) for the student and the parents will have regular meetings and updates about the ability of the school to meet the child’s special needs.

In most cases, the school districts have the resources and expertise to meet the various special needs of different students – often more capably than private schools who do not see the need to invest as heavily in special needs staffing.  Sometimes, however, a school district may not have sufficient resources to handle certain more complex cases that require greater care.  In these situations, the school district may recommend seeking a special private school that deals exclusively with special needs children.

Consider the following situation.  Parents have a child with a variety of processing disorders that qualify for an IEP, with extended time, a staffer who will take notes in every class, and at least two hours of special instruction focused on organization and memory retention.  The parents live in an average school district that can meet these accommodations, but certainly not as capably as other public or private schools.  One parent believes the school is not serving the child well and sees the child’s performance dropping and wants to transfer to another public school or a private school, both options requiring tuition.

The resolution of this case will follow that of the gifted child in our previous post.  The parent will have to file a motion to modify and set forth a specific case for the need for transfer, including documented evidence of the inability of the current school to meet all of the child’s special needs and the demonstrable harm that would result from continuing at this school.  The parent will also have to show that the objecting parent has the ability to contribute to paying tuition.  If the parent can meet this burden, the court can classify the new school as a necessary expense on the Form 14 and increase child support accordingly.

Now consider a more extreme case, where the child has such severe disabilities no public school believes they have the resources to educate the child.  What relief can the parent have at this point when private school is necessary?  If the parents have certain income thresholds, they may qualify for government assistance under federal laws dealing with disabilities in education, but these funds may not cover all costs.  Otherwise, the parents will return to court on a motion to modify.  In this case, if the objecting parent has the ability to pay, that parent will have a hard time justifying not paying for services the schools have stated they cannot provide.

As a practical matter, if parents know they have a child with special needs, the original custody judgment should address the payment issues for private schools, particularly when deemed necessary.

As a general point of review, a parent seeking to make the other parent pay for private school to address special needs has a stronger case than a parent trying to accommodate religious issues or general preferences for private over public school.  In the latter cases, the parent seeking private school should be prepared to pay for it solo if the other parent will even agree (assuming they have joint legal custody).  Having the court order payment of private school is hardly an easy matter or a “given” in all but the most extreme cases.

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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