PRIVATE SCHOOL: WHO GETS TO DECIDE:October 18, 2017 by Mark T. Gabriel
I AM OUR CHILDREN’S CUSTODIAL PARENT AND WANT OUR CHILDREN TO ATTEND PRIVATE SCHOOL, CAN I ENROLL OUR CHILD IN PRIVATE SCHOOL WITHOUT MY EX’S CONSENT AND CAN THE COURT REQUIRE MY EX TO CONTRIBUTE TOWARD THE COST?
First, the question of whether or not you should be able to enroll a child in private school is generally governed by the custody arrangement held by the parties. For example, in most circumstances, the parties share joint legal custody of their child which means that they share equal decision making authority concerning the important issues related to their children’s health, education, safety, and welfare. In addition, one parent is the designated parent of primary residence (or custodial parent – the parent with whom the children reside for the majority of the time) and the other parent is the designated parent of alternate residence (the non-custodial parent). In most cases, if the non-custodial parent does not consent to enroll the parties’ child in private school, the custodial parent, the parent seeking to enroll the child in private school, must file a motion with the Court for consent to do so. The decision as to whether the parties’ child should be enrolled in private school would then be governed by a best interests standard. In other words, the Court would be tasked with deciding whether enrolling the parties’ child in private school is in the child’s best interests.
If the Court decides that it is in the best interests of a child to be enrolled in and attend private school, the next question is whether the non-custodial parent must contribute toward the cost of the children’s private school attendance.
In Hoefers v. Jones, 288 N.J. Super. 590 (Chanc.Div. 1994), the Court found that when determining whether a non-custodial parent should be obligated to contribute toward the private school education costs of the parties’ child, the following factors, when applied on a case by case basis, form an appropriate standard of review:
- Ability of non-custodial parent to pay.
- Past attendance of one or both parents at that or a similar private school.
- Whether children were attending private school pre or post divorce.
- Prior agreement of non-custodial parent to pay, to send children to private school.
- Religious background of the parties, their children.
- Are special educational, psychological and/or special needs of child met, advanced by such private schooling?
- Generally, is it in the child’s best interest to attend, or to continue to attend, private school (is the academic environment in child’s best interest?).
- Whether court order or agreement of parties prefers specific right of school choice on residential custodial parent.
- Were actions of residential custodial parent to enroll or to continue to enroll the children reasonable under the circumstances?
- Is such private school tuition permitted or authorized as part of that state’schild support guidelines, or by other law(s)?
- Ability of child to respond, prosper from this educational experience; will such schooling be of particular benefit to him or her?
- Lack of present, past non-custodial parental involvement in children’s education.
- Degree of involvement of custodial parent in children’s education (is it extensive?).
- Is residential custodial parent’s views, desires consistent with past practices regarding private school education? Id at 611 – 612.
Based on the standard set forth in Hoefers, whether a Court will find that a custodial parent will be permitted to enroll the parties’ child in private school over the non custodial parent’s objection and if so, whether the non-custodial parent would be required to contribute to such costs, depends on several factors and can only be determined on the specific facts of each case. Therefore, such litigants would be best served by seeking the advice of an attorney who specializes in family law. If you or someone you know would like to enroll his or her child in a private school over the objection of the non-custodial parent, and is seeking contribution from the non custodial parent for such costs, then call the skilled lawyers at Lyons & Associates, at (908) 575-9777. The attorneys at Lyons & Associates, P.C., are experienced with the intricacy of New Jersey Case Law and Statutory Law and are able to guide litigant’s accordingly, by giving an honest and fair assessment of each litigant’s case and not by telling the litigant what he or she simply wants to hear.
Written By: Mark T. Gabriel, Esq.