In most modern day divorce cases, both parents of a child are awarded joint legal custody of their children. The issue of where are the kids going to go to school does not come up very often when both parents are living in the same school district, unless the children are going to a private school and money is an issue.
However, the issue of where are the kids are going to go to school can come up usually when one or more of the parents no longer lives in the same school district and the issue is usually a matter of convenience for one or the other party. In situations where one parent has sole legal custody there is no issue as to where the children are going to school; the legal custodian can make the decision without conferring with the other parent, but in cases where both parties have joint legal custody, it turns into a contested issue.
There is not much in the way of law that helps us with any guidelines except for the Child Custody Act of 1970 that tells us that the decision must be in the best interest of the children; not the parents.
There are two statues that help us a little.
Those two statues are found in the State School Aid Act of 1979 (Act 94 of 1979) and the Revised School Code (Act 451 of 1976). MCL388.1624(b) & MCL380.1148(a).
These two statutes, basically provide that it doesn’t make any difference as to who has or does not have legal custody; if a parent lives in a school district their child can be enrolled in that school district. When parents have joint legal custody and the parents cannot agree on where the children go to school, the court makes the decision for them based on the child’s best interest and the court must make specific findings of fact on the record.
Pierron vs. Pierron, a 2009 Court of Appeals decision, pretty well instructs us as to what the court must do to determine an issue, like school district. The court says to use the best interest factors as found in the 1970 Child Custody Act MCL722.23. However, in using the factors the trial court is not to focus on custody; it is to focus on the issue of school district. Further, that quantum of proof to determine the school issue is by a preponderance of the evidence, not clear and convincing.
One of the rulings in the Pierron decision was that a request for change of school is not a fact that would justify a claim of change of circumstances that justifies a claim for change of custody. However, a request of change of school district that would change significant parenting might be.
In the Pierron case the change of school decision caused a change involving 60 miles of travel time. The Court did not believe that a 60-mile change was sufficient to change custody or visit custody as an issue.
Further, the court in Pierron said that the court must determine the best interest for each child separately and that the preference of the child should not be discounted on the basis that the child had not been in the new school.
If you are facing an issue of where your children will be going to school, visit with an attorney today to find out your options. 269-381-4471
