Virginia Joint Legal Custody and School Enrollment

Posted on Aug 28, 2017 by Katie Carter

In Virginia, there are two different types of custody: legal custody, and physical custody. Most of the time, parents fight over physical custody, because that has to do with where a child spends the majority of his or her time. Legal custody, on the other hand, refers only to the right to make three types of decisions on behalf of the child: non emergency medical care, religious upbringing, and education. In most cases, legal custody is awarded jointly. Having joint legal custody means, essentially, that you and your child’s father will cooperate with respect to making those three types of decisions on behalf of your children.

But what if you and your child’s father can’t reach an agreement about one of those things? What if, for example, where to enroll the children in school is a huge issue?

Even worse—what if your child’s father takes your child, over your objection, and enrolls him or her in a different school? What if he wants a school that isn’t convenient for you or that is different from what you and he had previously decided with respect to your children’s education? What if he wants a public school, and you want private school (or vice versa)? How can you have joint legal custody when you disagree? Who wins?

Most of the time, this is an issue for the court. Obviously, if you can’t agree, you’re going to need some help reaching a decision. He can’t just take your child and enroll him or her somewhere without your permission; likewise, you may have some trouble from him if you try to go and enroll your child somewhere over his objection.

You CAN enroll your child without your child’s father’s permission (and, similarly, he could, theoretically, just go ahead and enroll your child, too, without your permission)—but a judge might get the final say if your case goes to court. But what are you supposed to do? Your child has to go to school somewhere, and you and your child’s father fundamentally disagree about where the best place would be.

When you have a custody and visitation agreement (or an order entered by the court) and one of you enrolls the child over the objection of the other

If you have a custody and visitation agreement or order in place already, there are specific rules in place that govern your behavior. Enrolling a child in school over the objection of the other parent violates the agreement or order, so the child’s other parent can pursue this in court by filing a show cause.

Technically, there could be penalties for violating an agreement or order of the court. Most of the time, though, in my experience at least, judges don’t come down too hard on parents in situations like this. If they acted genuinely out of concern for the child’s best interests, it’s probably going to be regarded by the judge as a “no harm, no foul” kind of thing. That doesn’t mean, though, that the judge will order that the child remain in the school where the offending parent enrolled him or her. That’s a different issue entirely.

The judge will look at the best interests of the child factors, like in any other custody related dispute.  Ultimately, the judge will have to look at what’s in the best interests of the child, so he will consider things like where the school is located, what specific offerings there are there (like if, for example, there’s an amazing art or drama program that your child is interested in, or whether there are IB or AP courses that are appropriate for your child’s academic level, whatever the case may be), and so on. Attorneys on both sides will have the opportunity to present evidence; if you don’t have an attorney, you can present evidence on your own side.

In most cases, it can come down either way. That’s not to say, though, that I think a parent will be able to force their child’s other parent to drive an hour each way to and from school on a regular basis to drop the kid off and pick him or her up; that’s probably not reasonable. The non custodial parent (the parent who has the child less) will probably have less influence over the convenience and practicability of attending the school.

When the dispute is over private or public school

Judges don’t like to require that parents send their kids to private school because of the financial commitment it requires. I’ve seen it happen; it is within the judge’s authority to order it, but it doesn’t happen all the time. Most of the time, when I see a judge order that a child remain in private school, it’s because the child is late high school aged, and it would be more damaging to pull the child out than to allow him to remain there.

For younger children, it’s going to be an even more difficult battle, even if they’ve spent a couple of years in the school. Judges are sensitive to the financial concerns of the parents, and are loathe to require that they spend extra money—especially if you happen to live in a particularly good school district (as is often the case in the Hampton Roads area).

It’s not impossible to get a judge to order that the children attend private school, of course, but, most of the time, judges find that it’s more realistic to enroll the children in public school.

Whenever this issue has come up in a case I’ve had, I’ve encouraged my client to settle the issue outside of court. I don’t want to litigate over this, because it’s probably not going to be worth the time or money expended fighting over it. It’ll be easier to get an agreement in place allowing for private school than it will be to convince a judge—unless, like I said, we’re talking about a 16 year old child or something (and, of course, even then, there’s a risk that the judge will decide something else).

When you’re fighting over whether to enroll the child in the school in your district – or in his
The location of the school is often a hot button issue. Each parent wants the child enrolled in the school that is geographically closest to them. It’s a legitimate concern, especially if you share the responsibility of shuttling the child back and forth.

It’s difficult in cases where custody is shared, or where mom and dad take close to 50% of the parenting responsibility. Ultimately, in those cases, it’s going to be up against the judge. It’d be important to offer evidence beyond the convenience of a particular school to the parent, but why the choice in question is in the child’s best interests. (Convenience of a parent is understandable, but it’s not one of the factors!)
If one parent has a majority of the parenting time with the child, it may very well be that that parent’s preference is regarded with a little more importance. You’ll still want to offer evidence about why the school is in the child’s best interests, but chances are good (though it’s never guaranteed) that a judge will understand that, if you live in Ocean View, you can’t be expected to take the child to and from the Oceanfront nearly every day.

When you’ve agreed to homeschool your child and your child’s father changes his mind

Again, this is going to be an issue that is ultimately up to the judge. Homeschooling, though, has to do with a lot more than just legal custody. If you’re homeschooling, it may be that other issues—like spousal support (because it’s hard to work a job full time when you’re at home trying to teach your children full time)—are also involved.

That’s going to make this type of case very fact specific. It has a lot to do with all the other related issues involved, but you’re definitely going to want to rely heavily on the factors to convince the judge of your position.

Enrolling a child in school is a difficult decision, but it’s made even worse if you and your child’s father have joint legal custody and you just can’t agree. You may need the help of the court, but you should also make sure not to forget the best interests of the child factors – keeping them in mind as you litigate, whether you hire an attorney or not, will serve you well!

If you’re hoping to represent yourself in court, consider attending Custody Bootcamp for Moms.  For more information, or to request a copy of our free report, “Can I REALLY Represent Myself in a Custody Case?” by clicking here. If you’d like to schedule an appointment with one of our licensed and experienced Virginia custody attorneys, give our office a call at (757) 425-5200.