Once in a while I am asked about what happens when two divorced parents (or two parents who are in the divorce process) cannot agree on which school their children should attend. In Minnesota, the right to select a child’s school is one of the rights that is included in the “bundle” of rights called “legal custody.” In other words, the parent, or parents, who have legal custody or joint legal custody get to make the decision.
In Minnesota divorce proceedings, there is a presumption that legal custody will be joint – that is, shared by both parents. This means that both parents will have a say in which school a child goes to after the divorce, just as they did before the divorce.
While there is a presumption in favor of joint legal custody, this can be overcome if one parent can show that domestic abuse has occurred, or if one parent can show that joint legal custody is not in the best interests of the children. However, most of the time, legal custody is awarded jointly to both parents.
So, what happens when the parents disagree about schooling? Often times the court will make the decision. My opinion is that the court should not pick a school, but should instead make a decision about whether one parent only should have sole legal custody (with no need to obtain the other parent’s consent). But, as often as not, these days a judge or referee might hear the evidence and make an order about schooling, without necessarily modifying joint legal custody.
In either case, there are specific factors that most courts will look for when deciding this issue. If you and your ex-spouse are having difficulty with this issue, feel free to call me at (952) 270-7700 for a free consultation on yours and your children’s rights and the best way to assert those rights.
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