Monday, 06 May 2019 16:47

School Choice and Custody

 

Divorced or separated parents often have difficulty agreeing on issues related to their children.  School choice is an important issue in custody cases that is often in dispute.  Disagreement as to school choice can involve public school versus public school, public school versus private school, public school versus parochial school, or private school versus parochial school.  It is imperative that parents know and understand the law in Pennsylvania with respect to custody and school-related litigation.  Ideally, parents should make every effort to work together to co-parent in the best interest of their children and reach an agreement as to which school their children will attend.  Doing so will minimize stress and conflict for all involved, most importantly children.  Not surprisingly, such compromise can be very challenging for divorced or separated parents.

The Pennsylvania child custody statute defines physical custody as “[t]he actual physical possession and control of a child” and legal custody as “[t]he right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.”  See 23 Pa.C.S. Section 5322(a).

The Pennsylvania Code addresses admission to public schools and provides “[w]hen the parents reside in different school districts due to separation, divorce or other reason, the child may attend school in the district of residence of the parent with whom the child lives for a majority of the time, unless a court order or court approved custody agreement specifies otherwise.  If the parents have joint custody and time is evenly divided, the parents may choose which of the two school districts the child will enroll for the school year.”  See 22 Pa. Code Section 11.11(a)(1).

Pennsylvania courts generally award custody on a 50/50 basis.  As such, the typical custodial arrangement is shared physical custody and shared legal custody.  Parents who exercise shared legal custody of their children have the right to make education-related decisions on their behalf.  Education-related decisions include school choice, or where the children will attend school.  Since most parents exercise shared legal custody of their children, they must agree on school choice.

Pennsylvania law permits a school-age child to attend the public school of the district in which the child resides.  If one parent exercises primary physical custody then the children may attend the school district in which the primary custodial parent resides.  If both parents exercise shared physical custody then the children may attend the school district in which either custodial parent resides.  Conflict often arises as the law does not grant exclusive decision-making authority to either parent in this situation. 

When there is a dispute among parents regarding school choice, and they are unable to reach an agreement, one of the parents must seek court intervention.  The court will make a determination as to where the children should attend school by considering the evidence presented by both parents in light of the overall goal of serving the best interest of the children.  Relevant evidence includes, but is not limited to, school ranking (curriculum, standardized test scores, and crime rates), school location (distance between the school and each parents’ residence), child’s educational needs and academic performance (report cards and progress reports), child’s participation in sports and other extra-curricular activities, child’s preference (depending on the age and maturity of the child), and school tuition (if applicable).

Divorced or separated parents who know that there is a dispute as to school choice and that court intervention is likely necessary, should consult with an attorney who specializes in custody litigation.  It is critical to avoid delay when dealing with the issue of school choice in custody cases.

Published in AMM Blog

As family law attorneys and parties to custody orders can attest, shared custody and co-parenting arrangements are often fraught with ongoing tensions, stress and conflict.  Using the court system to litigate smaller disagreements in the aftermath of a custody order is inefficient, costly and time-consuming.  In addition to the burden it places on the Court system, it is a strain on not only the parents, but most importantly, the children who are subject to the order.  Fortunately, a common sense alternative is soon returning which can mitigate some of the strife of custody disputes in the future.

On March 1, 2019, the Parenting Coordination program, which was terminated in May 2013, is being reinstated by the Pennsylvania Supreme Court. The rule allows the Court to appoint a parenting coordinator to resolve parenting issues arising from the final custody order issued in the case. The rule clearly establishes that parenting coordination is not intended for every case. Coordinators will not be appointed where there is a protection from abuse order in effect between the parties to the custody action, a finding by the Court that a party has been a victim of domestic violence by a party to the custody action during the case or within 36 months of the filing of the custody action or where a party has been the victim of a personal injury crime.

A parenting coordinator will be appointed for a period not to exceed 12 months; however, this may be extended. The rule also sets certain qualifications that must be met prior to the coordinator’s appointment. Once appointed, the parenting coordinator will have the authority to recommend resolutions to the court on specific custody related issues including, but not limited to: deciding on locations and conditions for custody exchanges; temporary variations of the custody schedule due to special or unique events and circumstances; and any school-related issues.

There are, however, specific areas into which the coordinator is explicitly prohibited from making any decisions such as: changing legal or primary physical custody; changing the custody schedule (a permanent change, rather than a “temporary” one); changing the child’s residence or their relocation; financial issues; major decisions affecting the health, education or religion of the child; and any issues limited by the appointing judge. 

Under the new rule, after giving the parties or their counsel the appropriate notice and the opportunity to be heard on the issue(s), the coordinator submits to the court, and serves copies on the parties or their counsel, a written summary and recommendation within two days after hearing from the parties on the issues. An objecting party has five days from the service of the summary and recommendation to file a petition appealing the coordinator’s recommendations on all or specific issues. If neither party appeals the recommendation, the court undertakes one of the following options: approve the recommendation and make it an order of court; approve the recommendation in part and hold a hearing on the remaining issue(s); remand the recommendation back to the coordinator for more specific information; decline to enter the recommendation as an order and conduct a hearing on the issues. If a timely objection is made and a hearing is required, the recommendation will become an interim order pending the hearing and issuance of a further order by the court.

Custody matters are typically the most high-conflict and costly type of family law cases. By reintroducing the amended parenting coordination rule, the Supreme Court has returned a functional tool to the courts, attorneys and litigants to expedite custody disputes and reduce stress and costs for all parties involved. The hope is that this additional tool will assist all parties involved in achieving the best interests of the children in custody cases.

Published in AMM Blog

By: Elizabeth J. Fineman, Esquire

Social media use has become pervasive in modern culture.   More and more people regularly engage in social media activities across several platforms, including Facebook, LinkedIn, Twitter, SnapChat, Instagram and Google+.  Unfortunately, many people post to various social media sites without giving sufficient consideration to the possible consequences.  For those who are going through a divorce, engaged in a custody dispute or paying or receiving support, it is essential that you evaluate your social media habits and apply a higher level of discretion to your social media communications. 

Family Law cases are often tumultuous and there are a lot of emotions involved.  It is not uncommon for some to use social media as an outlet to vent their frustrations, conflicts, or interpersonal issues.  That is never a good idea.  Any time you post something to social media, you should ask yourself, "How would a court view this post?"  If this is not something that you would want raised at a future hearing, do not post.  For many, this kind of self-editing or “filtering” is difficult.  My strong advice to them is to take a break from social media, and develop some “rules” for posting before resuming social media activities.  A few good guidelines are; never post when you are angry or upset, give yourself a cool down period, don’t engage in a public debate or correction of others on the internet, stop and take a moment to think and re-read before posting. It’s important to remember, once you tweet, share or post, you have effectively put something out on the web that you can’t really take back.

For parents, if the other parent objects to the children's photographs being posted to social media sites, you should respect their wishes.  There are other ways to share photographs with family and friends other than social media which are much more secure.

It is important to understand that information posted on many of these sites can be obtained, even after posts are deleted.  Therefore, posting and later deleting may not be sufficient.  There have been too many instances where social media postings have negatively impacted results in domestic relations matters.  In custody, some people post photos and "check in" places during their periods of physical custody, making it clear the children are regularly left with a babysitter.  If seeking additional custodial time, this is never a good idea.  Some people involved in support litigation post information that makes it clear that their income is higher than they have disclosed.  These can all have a detrimental impact their results in court.

I hope the take away here is clear; you must use extreme discretion when utilizing social media when divorce, child custody and support are at issue. 

Published in AMM Blog

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