Parents who are unmarried, separated or divorced may disagree about how to raise their children, and specifically where to send them to school. While the Delaware Family Court very much prefers for parents to discuss their children's educational options objectively and come to a consensus about where to send their children to school, this is not always possible for a multitude of reasons. In situations where the parents reach an impasse, the Family Court has jurisdiction to vest authority in one parent to enroll a child in an eligible school over the other parent's objection.
In a school choice dispute, the parents have the option to engage in alternative dispute resolution with a trained arbitrator or mediator versus appearing in Family Court for a hearing before a judge. There are many benefits to alternative dispute resolution. But it is voluntary, which means both parents must agree to go this route. Accordingly, one parent may be forced to file a Petition for Custody or a Petition to Modify a Custody Order, seeking sole custody, primary residence or final decision-making authority over educational decisions. If you appear before a judge, there are a number of factors the judge is required to consider, including but not limited to, the wishes of the parents and children, the children's adjustment to home school and community, and past and present compliance of the parents with their parental responsibilities and obligations. If the child is of an appropriate age and maturity level, the judge can interview the child about his or wishes at either parent's request.
Historically, Delaware Family Court judges have shown an unwillingness to order a child to attend a private school over the other parent's objection, except in situations where the public school cannot meet the individualized special needs of a child and the parents have the financial ability to afford private school tuition. But this is changing. In a recent decision by Chief Judge Michael K. Newell of the Family Court, the Court awarded the mother with final decision-making authority over educational decisions with full knowledge that she intended enroll her child in a private school over the father's objection. Chief Judge Newell distinguished the prior case law to the contrary on the bases that the child had attended the private school in question since he was four years old, the father did not oppose the decision to send his child to private school during the parties' marriage, and another disruption or transition for the child would not be in his best interest. A.P. v. U.P., Del. Fam., File No. CN14-01480, Newell, C.J. (Feb. 17, 2016)
School choice disputes are incredibly fact specific. Consider scheduling an initial consultation with a family law attorney who specializes in this area to discuss your options.