When parents have joint custody, do both need to approve of a child moving out of state for school? 24 Answers as of January 05, 2011

When parents are divorced and have equal and joint custody of their child, does a child need both parents approval in order to go away to something like a private school or college prep school? it is a boarding school scenario. If the child does need the approval of both parents, then can the child appeal to a judge? Will the child need to hire a lawyer? What can be done? (The child in question is nearly 16 years old and wishes to spend their last two years of high school at an advanced private school, but one parent will not agree to let the child go.)

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Harris Law Firm
Harris Law Firm | Jennifer C. Robins
In the State of Oregon, joint custody would require that both parents agree. The parent who is in favor of the child attending this school could make a motion to the court. In Oregon, the rule is best interest of the child. It sounds like that school would be in the child's best interest.
Answer Applies to: Oregon
Replied: 1/5/2011
The Connelly Firm P.C.
The Connelly Firm P.C. | Thomas Connelly
Yes. Joint legal custody means that both parents must consent.
Answer Applies to: Pennsylvania
Replied: 1/5/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
Under the circumstances that you relate, you would best file an Order to Show Cause seeking an order modifying physical and legal custody to permit you to send your son to the boarding school he wants to go to, and you should file and serve a witness list of nonparty witnesses comprising your son and any other person (other than you) whose testimony would be relevant to the issue - including a brief description of the anticipated testimony of each nonparty witness. Your son can't appeal to the judge independently of your Order to Show Cause, but may be allowed to directly or indirectly present his desires to the Judge, as indicated below. The Court may, if you request in your Order to Show Cause, appoint Minor's Counsel to represent your son, but is not required to do so.

Look at the Judgment or Order awarding "joint custody", and read its provisions regarding joint legal custody, to determine whether the court specified that the consent of both parties is required with regard to your son's education, and then read its provisions regarding joint physical custody, to determine whether sending your son to the out-of-state boarding school would be inconsistent with the physical custody order.

I would assume that sending your son to the out-of-state boarding school would be inconsistent with the physical custody order awarding joint physical custody, insofar as it relates to your wife's physical custodial rights.

Family Code Section 3002 defines Joint Custody as joint physical custody and joint legal custody.

Family Code Section 3003 defines Joint Legal Custody to mean that both parents shall share the right and responsibility to make the decisions relating to the health, education and welfare of a child.

Family Code Section 3083 provides that in making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parties is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the Court.

Family Code Section 3150 provides (a) If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in California Rules of Court Rules 5.240, 5.241 and 5.242. (b) Upon entering an appearance on behalf of a child pursuant to this chapter, counsel shall continue to represent that child unless relieved by the court upon the substitution of other counsel by the court or for cause.

Family Code Section 3042 provides that (a) if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody; (b) In addition to the requirements of Evidence Code Section 765(b), the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences. [As of January 1, 2012, an amended version of Family Code Section 3042 will come into effect].

Family Code Section 217, effective January 1, 2011, provides in relevant part: (a) At a hearing on any order to show cause or notice of motion, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

Your Order To Show Cause should be supported by 1) a declaration by you addressing the change you seek and detailed facts relating to your research of and dealings with the boarding school and your son regarding his request to go to the boarding school, along with your proposed custodial plan; 2) a detailed declaration by your son regarding his desire to go to the boarding school, his reasons why, and demonstrating his intelligent preference and his capacity to reason, and 3) a declaration of any other person with relevant testimony (such as his principal, counselor, or teacher) relating to and justifying your son's desired educational (and physical) move.

Your witness list should include your son and a brief description of his anticipated testimony.
Answer Applies to: California
Replied: 1/4/2011
Saddleback Law Center
Saddleback Law Center | Paris Kalor
If the parents have joint legal custody, then both parents must agree on decisions regarding welfare, education, safety of the child.

The parent who supports the child's position with regards to the future education, must petition the court. The court then makes a decision based on what is in the best interest of the child. Usually it would be more helpful to have recommendations from a custody evaluator.
Answer Applies to: California
Replied: 1/4/2011
Law Office of Joseph A. Katz
Law Office of Joseph A. Katz | Joseph A. Katz
The parent who agrees to have the child go to the out-of-state boarding school should bring an Order to Show Cause (OSC) on behalf of the child for a Court Order allowing the child to go. As a practical matter, the child is too old for the non-consenting parent to prevent him from going. The child is old enough to move to be emancipated now, as a last resort. I am not talking about any concerns relating to money or funding of the tuition, of course.
Answer Applies to: California
Replied: 1/4/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    You need to first look at your divorce decree/custody orders. Does one parent have the exclusive right to make educational decisions? If so, that is your answer. If that power is joint or mutual, then again, you have your answer.

    The child can hire a lawyer and seek emancipation but that is not easy to get. If emancipated, the child can make his her own decisions.

    My suggestion is to talk to the recalcitrant parent. He or she needs to think rationally and long term. I for one, would not want my daughter moving off to school unless I am going with her - but I also understand that prep schools offer educational opportunities like no other. If finances allow it, does he or she want to hurt the child's opportunities in life? They can, legally speaking, and there is little recourse. The parent in agreement can petition the Court to modify the Custody Orders and allow it - the parent should file this, not the child. Ask the Court for permission and explain why it is in your child's best interest. The Court may not grant permission per se, but it very well may grant you the exclusive right to make educational decisions - at which time, the parent with that power will decide if your child gets to go.

    Hope that at least helps a little. My office is in Plano and I handle cases in Collin and Dallas Counties. If you live in this area, I would love the opportunity to meet with you and discuss this further. Just let me know.
    Answer Applies to: Texas
    Replied: 1/4/2011
    Law Office of Tim W. Avery
    Law Office of Tim W. Avery | Tim W. Avery
    You need to review your divorce decree to determine how the parental right of making education decisions of the child was allocated. It should state whether said right to make said decision was allocated 1) exclusively to one parent; 2) to both parents with each having the right to act independently; or 3) to both parents with said decision having to be made by joint agreement. Furthermore, review your decree to see if there was a geographical restriction placed of the primary residence of the child. There may be no restriction or there may be a restriction that the child has to reside within a certain geographical area. If the education decision making does require a joint agreement and/or there is a geographical restriction, you may need to file a motion to modify your divorce decree.
    Answer Applies to: Texas
    Replied: 1/4/2011
    Cutter & Lax, Attorneys at Law
    Cutter & Lax, Attorneys at Law | Matthew E. Lax
    The parent requesting that the child be allowed to move needs to seek a move away order from the court. The court will break the deadlock and decide one way or the other what is in the best interest of the child. This can be a complicated process which an attorney can help you with. If you need legal representation in this matter feel free to contact me at the contact info below.
    Answer Applies to: California
    Replied: 1/4/2011
    Diana K. Zilko, Attorney at Law
    Diana K. Zilko, Attorney at Law | Diana K. Zilko
    Typically, when both parents have equal custody, they both must agree on all important decisions, including medical care and schooling. Even if the child is 16, they are not old enough to make the decision on their own. The parent who wants to allow the out-of-state schooling can always file a motion and ask the court for an order permitting such.
    Answer Applies to: California
    Replied: 1/4/2011
    Maclean Chung Law Firm
    Maclean Chung Law Firm | G. Thomas MacLean Jr.
    Either both parents likely need to agree or the court can also order the child be allowed to attend school if it is in the best interest of the child.

    It may be necessary to request that the court appointment a minor's counsel to represent the child in court. At the age you mentioned, the wishes of the child are weighed heavily by the court if reasonable.
    Answer Applies to: California
    Replied: 1/4/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Your use of the term "joint custody" suggests that your case might not have been originally decided in Colorado, or that it was a long time ago, because Colorado no longer uses that terminology. The current Colorado terminology refers to "decision-making" responsibility, but use of the "joint custody" language would be comparable to what is now referred to as "mutual decision-making responsibility". Unless the court ordered parenting plan specifically says something different, joint custody and mutual-decision making require that both parents agree on "major" decisions. Sending a teenager to an out-of-state boarding school is clearly a major decision - factually, there is an element of abandoning the role of parenting involved by relocating the child to the care and control of third parties so it involves more than just financial obligations, but determining respective financial obligations alone is sufficient to justify involving someone else to break the obvious tie vote. Since both parents do not agree, the parents need to either seek a ruling by the court or, alternatively, agree to have the court appoint someone as an arbiter to make the decision based on the best interests of the child. The child's wishes are relevant, but not controlling. And, depending on all the surrounding facts and circumstances (including the past history and each parent's financial resources), a court might permit the child to go to the boarding school, but require the "consenting" parent to bear the full cost. There is nothing in the law that grants a child the right to any private school arrangement and the judge has considerable discretion in determining whether it is appropriate to compel a parent to pay for private schooling.
    Answer Applies to: Colorado
    Replied: 1/4/2011
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    I do no think the child needs an attorney, but both parents will want one. You need to file a motion requesting the school change on the best interests of the child and the child's wishes.
    Answer Applies to: California
    Replied: 1/4/2011
    Law Office of Curry & Westgate
    Law Office of Curry & Westgate | Patrick Curry
    One parent must request that the court allow the move to go to school, hire a lawyer in order to do the paperwork properly.
    Answer Applies to: California
    Replied: 1/4/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    Both parents would need to agree; otherwise, the matter would need to be put before the appropriate court for a decision.
    Answer Applies to: Virginia
    Replied: 1/4/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    This issue will have to be brought before the judge. At 16, the court will give a lot of weight to the minor child's wishes. The court might not be able to order that both parents share the cost. But clearly in a case like this the court will have the ability to consider the minor child's wishes and would likely allow the child to go away to school.

    If this is a good school/program and the child excels in school, the court would be hard pressed not finding that it is in the best interest of the minor to go.
    Answer Applies to: California
    Replied: 1/4/2011
    Steven D. Keist, Attorney at Law
    Steven D. Keist, Attorney at Law | Steven D. Keist
    Yes in writing and should be an order signed by the Judge.
    Answer Applies to: Arizona
    Replied: 1/4/2011
    Keri Burnstein, P.C.
    Keri Burnstein, P.C. | Keri Burnstein
    You may need to consult with an attorney who practices children's law. I would also suggest looking into what the school requires regarding consent as the child is a minor until he/she reaches the age of 18. However, I am certain that both parents would have to consent. You, the parent who agrees to allow the child to go to school out of state could petition the court to allow the child to move.

    Most importantly, I suggest hiring an attorney who has either or both family law experience and experience in children's law.
    Answer Applies to: Michigan
    Replied: 1/4/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    That is a somewhat complex question and the answer will be based on the specific facts of your case. Joint custody means the parents will consult and agree to such decisions. If you don't agree then you can bring it to court and the child can be appointed an attorney to represent their interest. Going out of state adds a further wrinkle due to the interference in the visitation; that will have to be addressed as well. Further, if the court does permit such a school choice it may not order the non-consenting parent to pay. Here is some relevant case law:

    Our Supreme Court has held that " courts have the power to direct one or both parents to pay for private schooling, if the circumstances warrant. It is a matter to be determined in the sound discretion of the court on consideration of the totality of the circumstances including the financial ability of the parties, the availability of public schools, the schools attended by the children prior to the divorce and the special needs and general welfare of the children." (Internal quotation marks omitted.)

    Hardisty v. Hardisty,
    183 Conn. 253, 262,
    439 A.2d 307 (1981).

    In the Hardisty case, the Supreme Court reversed the decision of the lower court that had ordered the father to pay for private schooling. It stated the following:

    The case before us appears therefore to be a case of first impression, not only here but elsewhere in this country. The record before us is thus especially significant as we explore these uncharted waters. That record shows a gifted child, eager to go to a private secondary school, and a noncustodial parent with sufficient financial means to pay for such education. What the record does not show is, however, equally revealing. There is no showing of this child's special educational or psychological need for private schooling or of the inadequacy, in general or for this child, of the local public schools.

    There is no showing that, but for this divorce, this child would probably have attended a private school; in fact, the defendant's family history indicates the opposite. There is no showing that the defendant ever agreed to private schooling for his son. To the contrary, the trial court has found, as a fact, that the defendant believes that his son's enrollment at the Kent School is unnecessary and undesirable.

    We have come to accept the unfortunate reality that marital relationships sometimes break down irretrievably without fault due to the emergence of irreconcilable differences between the marital partners.
    Joy v. Joy, 178
    Conn. 254,

    A.2d 895 (1979). The same irreconcilable differences that led to the breakdown of the marriage often spill over into significantly divergent views about child rearing.

    Seymour v. Seymour,
    Conn. 705,

    A.2d 1005 (1980). In order to minimize the disruptive impact of such conflicts upon the children of the marriage, custody may be awarded to one parent alone; Seymour v. Seymour, supra; or a monetary award substituted for divisive joint decision-making. Cleveland v. Cleveland, supra, 101. The right of the custodial parent to make educational choices is, however, an insufficient basis, absent a showing of special need or some other compelling justification, for increasing the support obligation of the noncustodial parent who genuinely doubts the value of the program that he is being asked to underwrite. In the light of the totality of the circumstances in this case, we conclude therefore that the trial court abused its discretion in modifying the support award for Andrew Hardisty to require the defendant to pay Andrew's expenses at the Kent School. For the same reason, the award of $3000 retroactive support for Andrew was also in error.

    The Hardisty case demonstrates that even if one party has the decision making power regarding education, that does not necessarily mean that the other parent must pay for the chosen education. The court must look at the factors it stated and then make a decision based on the "totality of the circumstances."

    If you wish to explore this further in light of your specific circumstances please let me know. Good luck.
    Answer Applies to: Connecticut
    Replied: 1/4/2011
    The Law Office of David J. Reed, LLC
    The Law Office of David J. Reed, LLC | David J. Reed
    The court will always listen to the words of the child with regard to custody and visitation; there is usually a stipulation or court order regarding moving to another state - in this situation, if the other parent does not like the move, you should bring an action asking to modify the order for custody and ask the court to determine whether the move is in the best interests of the child.
    Answer Applies to: Nebraska
    Replied: 1/4/2011
    DiManna Law Office, LLC.
    DiManna Law Office, LLC. | Dawn DiManna
    There are options available to keep the child where he/she wants to be, but there are more facts needed to determine what and when should be filed with the court.
    Answer Applies to: New Hampshire
    Replied: 1/4/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Yes, you will likely need a court order, depending on the provisions of the last custody order, whether it was part of the divorce judgment or part of a post dissolution matter. I'd suggest that you call a local family law lawyer to discuss the particular facts of your case in detail.
    Answer Applies to: California
    Replied: 1/3/2011
Click to View More Answers:
12 3 4 Free Legal QuestionsConnect with a local attorney