Surprisingly, the question of where to send a child to school during and after a divorce has become a widely litigated topic in recent years.  If one parent has sole legal custody of the child, that parent may make the decision regarding where the child will attend school.  If the parents share joint legal custody, however, the question becomes a little more complicated.

Joint Legal Custody of the Child

In Minnesota, there is a statutory presumption that parents will share joint legal custody. That means that unless there is evidence to rebut the presumption that both parents should have equal say in making decisions regarding their child’s education, health care, religion and other major life decisions, the law presumes it’s best for the child for the parents to share those decisions.  In this increasingly mobile society, parents are living farther and farther apart.  When parents share equal parenting time but do not live in the same community, the child will have to attend school in one parent’s community.

There are several situations in which this issue may arise, such as:

  • The parents got divorced when the child was very young (not school aged)
  • One or both parents have moved since the separation
  • One or both parents have remarried since the divorce

Increasingly, we are seeing situations where one parent cannot move from his or her home because of the real estate downturn so they are limited in their ability to move closer to a child’s school.

Best Interest of the Child

When the court is called upon to make the decision of where the child should attend school, Minnesota law says that the court should apply the best interest of the child standard codified in Minn. Stat. 518.17 to make the decision.  Sometimes, courts take live testimony from parties about what they believe is best for the child and why.  Sometimes, courts will make the decision after reviewing affidavits of the parties and the arguments of their attorneys.  The court will consider several factors before making this decision, including (but not limited to):

  • The living arrangements of each party and child
  • The desire to promote continuity and consistency for the child
  • Whether the children have any special needs
  • Each individual school’s merit

If you request that the court decide the issue of school choice for your child, remember to bring the request in advance to the court with enough time for the court to decide the issue.