How Will Private School Be Treated in My Divorce Case?

By: Jessica A. Saldin

There are many issues related to education and school that must be considered as part of a divorce case. Prior blog posts have discussed some of these issues. This post is specifically focused on private schooling and how the issue may be treated as part of your divorce case. There are several questions that you may have if you are considering private schooling for your children while going through a divorce.

One of the first questions may be, “can I enroll my children in a private school?” This question is related to general questions about educational decision making responsibility. Courts in Colorado tend to find that joint decision making responsibility is in a child’s best interests unless there are specific circumstances that cause the court to find otherwise (for example, in situations of domestic violence, if one parent refuses to communicate regarding decisions, etc.). Therefore, if you already have orders delegating educational decision making responsibility, the decision of the school in which you enroll the child must be made in accordance with the delegation in your orders. If you do not have orders regarding decision making, it is always best to try to reach an agreement with the other parent. Even if there is not an order requiring joint decision making responsibility, courts prefer to see parties that try to reach decisions jointly. Simply making a unilateral decision can adversely affect the decision making orders the court eventually enters. However, you also need to keep in mind that, if you are requesting sole decision making responsibility because of domestic violence, lack of responses from the other parent, etc., if a joint decision is made on the issue that could be considered by the court as evidence that joint decision making responsibility is best for the minor child.

Ultimately if your orders require joint decision making responsibility but an agreement is not able to be reached, you can file a motion with the court asking the court to ultimately decide where the child should go to school. It is always recommended to file these motions as soon as you know there is an impasse regarding the children’s school enrollment because courts often get many school motions in late summer, right before school is to start. If the court does not have the availability to hear the issue prior to the start of school, and if one party does not give in on the school issue, the delay would impede your child’s school attendance.

If the issue has to be brought to the court to decide, the court considers a variety of factors when deciding what school the child should attended. Some of these factors include: distance from the parties’ houses (travel time for the child), cost, school rankings and test scores, and extracurricular activities and programs available. In making the argument for a private school, obviously cost may be a concern for the court. Therefore, it is important to emphasize why the proposed private school is better than the public school the children could attend at no cost. Arguments to consider include: whether there was an agreement to enroll the child at a private school in the past, whether the child’s academic performance is ahead of grade level at the public school, whether the private school offers any special programs or activities that are unique to your child’s skills and/or talents and whether your child has any learning disabilities or struggles that the private school can better assist with.

The final question is, “if my child attends private school, how are costs to be handled?” If there is no agreement as to costs, Colorado child support statute states that they are to be split between the parents in proportion to their incomes, if the private school meets the particular educational needs of the child. More simply, that means more than simply if the private school is necessary if the child has a learning disability or qualifies for a special program of education. For example, if your child has been enrolled in private school for years and, therefore, may be advanced when compared to students at the same grade level in public school, the court may find that continued private school education meets your child’s particular educational needs. Frankly, if your child had been attending private school prior to the filing of your divorce, it’s likely a court would order private schooling to continue after the divorce is done and that costs be split as per statute. Speak with a divorce lawyer in Denver if you have questions regarding your children’s private school and your divorce.

Thus, while there are many issues that relate to your child’s education as part of a divorce case, private schooling presents unique issues to consider related to the allocation of costs and reasoning for a private education.