Legal Question in Family Law in Minnesota

I just received your question regarding the choice of school issue. This is a somewhat common, and often difficult issue to resolve.

If you share joint legal and physical custody with your former wife, neither of you can make a unilateral decision regarding the choice of schools. As you are already aware, an award of joint legal custody provides that you are both able to participate in making major decisions concerning the educational choices for your child.

In the event you cannot reach an agreement, most judges will first order you to participate in mediation. I understand that your wife previously refused to mediate, but the court will often order the parties into mediation, and will require your wife to attend. Merely directing the parties to mediation will not necessarily resolve the issue, however. Your former wife could just as easily refuse to agree with a mediator as she does with you. Nevertheless, the court may order mediation as a first step, or it may appoint an expediter who is given the authority to make a specific recommendation. Expediters are typically appointed to assist the parties in the resolution of more routine parenting problems -- scheduling issues, for example. Despite this, I have had a number of judges direct an expediter to assist the parties with a school choice issue.

As a last resort, the court may consider a modification of custody to award one or the other of the parties sole physical custody. However, the court will not ordinarily modify legal custody simply because you are unable to agree on the choice of school. The same standards that apply to the modification of physical custody apply to the modification of legal custody -- that is, the court will not modify custody unless the child is endangered by the existing award. (There are other grounds for modifying custody, but they are not likely relevant here.) This is a very high burden, and it is not easily met.

You need to understand that most judges do not want to be directly involved in the resolution of school choice issues, thus they will initially refer the parties to mediation or an expediter. Many judges will comment that they are not equipped to select schools for the children. On occasion, however, if the issue cannot be resolved by mediation, or by an expediter, and the deadline for enrolling a child in school is rapidly approaching, the court will make an order requiring the child to be enrolled in a particular school.

In your case, if the court is required to do so, I suspect it would likely order that the child be enrolled in public school. Most judges are aware that home schooling is a substantial commitment. Indeed, I am too am aware of the time and expense involved, since I home schooled three children through the 10th grade, and I have been involved in many home school organizations throughout Minnesota. I have also represented home schooling families in divorce cases, and in disputes with school districts over their compliance with Minnesota's compulsory attendance law. The difficulty for you is that home schooling your child will require your former wife to become actively involved, and she may have neither the skill nor the inclination to take on the responsibility of home schooling during the time she has your daughter in her care. It is unlikely the court would order her to do so. Moreover, it is not likely the court will order your daughter to attend a private school, Christian or otherwise, since this could have the effect of requiring your former wife to take on an expense she is unable to manage.

Having litigated this issue many times, I must caution you that this is a difficult issue to resolve, and one that needs to be addressed long before the deadline for school enrolment. I would need to consider many more facts before offering you any specific advice about how to proceed. I would also caution you that many judges consider "week on - week off" parenting schedules to be unworkable, and even detrimental, in the long term. It is often felt that such schedules do not provide a stable home base for the child, and as children get older these sort of arrangements usually break down. You may thus find that addressing the school choice issue will inadvertently raise a question about your underlying parenting schedule.

You should contact me directly if your require specific information. 612.234.2116