Making decisions regarding your children’s education can be tough. There are issues of what type of school to attend – Public, Private, or Homeschool – and issues of how rigorous a schedule to pursue.

 

For parents that are not together, either because Divorce or otherwise, the decisions can be even more complicated. Along with the normal decisions come the problems of who will pay for what, and who gets to decide.

 

Background

 

For at least the last 30 years, the issues surrounding the education of the children was somewhat of an afterthought for most people going through a divorce. It was assumed that most children would go to the public school closest to the person that the kids lived with most of the time after the Divorce.

 

Thirty years ago, and before that, the issue was who was going to be named the Managing Conservator of the children. That was the “winner” of the custody issue in any divorce or custody case. The “loser” was the Possessory Conservator.

 

Although the names were somewhat confusing, since it sounds like the Possessory Conservator was the one that had possession of the children, that was not the way it was. The Possessory Conservator was the one that only had the Right to the children according to a Possession Schedule.

 

Back in the olden days – think pre-early-1990’s – the Managing Conservator had the Right to possession of the children at all times other than those specifically designated for the other parent. That other parent was named as the Possessory Conservator.

 

And the time awarded to the Possessory Conservator was generally very little.

 

The Standard was 1st, 3rd, and 5th Fridays at 6:00 p.m. until the following Sunday at 6:00 p.m. and Wednesday evenings from 6:00 p.m. to 8:00 p.m. In addition to that, there was some holiday time and additional times in the Summer. But, given that there are very few 5th Fridays in the year, this schedule worked out to very little time with the “other” parent.

 

Back in those days, there was no such thing as Primary Possession or the Primary Parent or being designated Primary. Those concepts hadn’t been invented yet, because they weren’t needed.

 

Under a Managing Conservator – Possessory Conservator system, there was no question who was “Primary.” It was clearly the Managing Conservator.

 

A custody case came down to that one decision – Who was going to be the Managing Conservator?

 

Once that was decided, everything else fell into place. The three most important Rights went with the Managing Conservator. Those were the rights to make Medical Decisions, Psychological/Psychiatric Decisions, and Educational Decisions.

 

The Managing Conservator had the Right to choose the school that the children would go to, choose the classes that the children would take, and choose everything meaningful about the kids’ education, at least up through the end of high school.

 

But, even back then, if the Managing Conservator decided that the children should go to Private School, the question still arose of who would pay for it and how would it be handled.

 

Since those days, times have changed a great deal.

 

Now, in every Texas custody case, the Legal Presumption is that the parents will be named as Joint Managing Conservators. Additionally, now, the “losing” parent in a custody case typically gets at least an Extended or Expanded Standard Possession Schedule, if they want it.

 

That schedule adds overnights during the week – the Standard is for it to be Thursday overnights – and on the Sunday nights at the “other” parent’s house. Along with that, there is extra time available, since the children can be picked up from school, rather than waiting until 6:00 p.m. to start possession.

 

Now, the “winner” of a custody battle is the one that is named “Primary.” They are referred to as “the Primary,” “the Primary Parent,” the “one with Primary,” and the “Primary Possessor.” A Judge may ask at the outset of a Modification of Custody case, “Who has Primary?”

 

What the term is really referring to is what has become the number one right. That is, the “Right to Designate the Primary Residence of the Children.” This Right can be unlimited or restricted.

 

If the Primary has the Right to Primary without regard to geographic location, he or she can theoretically move the children anywhere in the World without having to seek permission from the Court. If the Primary Conservator has a Geographic Restriction – sometimes referred to as a Domicile Restriction and sometimes referred to as a Residency Restriction – he or she is not free to move the children beyond the limits of the restriction without seeking a Modification of the Custody Order.

 

Since things have changed so much over the last few decades with respect to titles and residency and possession, it has caused a major change in the way the other rights have been handled as well. As mentioned above, one of those is the Right to Make Educational Decisions regarding the Children.

 

These days, the three most important rights other than Primary are often referred to as “Med, Head, and Ed.” As always, they are the rights to make Medical Decisions, Psychological and Psychiatric Decisions, and Educational Decisions. But unlike in the past, they don’t go automatically (or virtually automatically) to one side or the other.

 

The Court can award them in any of the following ways:

 

1. Exclusive;

 

2. Exclusive, after consultation with the other parent;

 

3. Independent

 

4. Independent, after consultation with the other parent; or

 

5. Joint.

 

Keep in mind that the list is not exclusive. If the case goes to trial – even if it’s a Jury Trial – the Judge is the one that decides how these Rights are awarded. When the Judge does so, he or she can award them in one of the ways listed above or use any other words they choose. For example, nothing is stopping the Judge from awarding them to one parent or the others as “Exclusive, after meaningful consultation with the other parent through an in-person meeting lasting no less than 30 minutes in which the considerations of the non-primary parent are discussed for at least one half of the time.”

 

Moreover, it is entirely possible that the Judge could award the rights in different ways. So, the Court could give Mom Exclusive on Medical and Dad Exclusive on Psychological/Psychiatric and Joint on Educational.

 

If the Custody case does not go to trial, that means the parties have settled, either in Mediation or otherwise. In that situation, the Judge (or Court) has not “done” anything, except “bless” the decision of the parents. The parents, typically through their attorneys, have presented an Order to the Judge to sign that reflects their agreement.

 

As with the Court doing it, but possibly to an even greater degree, the Order is not limited to the five choices above. Those are just the basics, but the parties can write up anything they can agree upon. Normally, the Judge will sign off on whatever the parties present as their agreement. Whether the parents have made a wise decision or just created future problems for themselves is not really the concern of the Court.

 

Exclusive basically means that the person holding that Right can act with impunity, subject to being criticized and possibly taken back to Court for a Modification of Custody.

 

Independent means that each parent can exercise the Right. Obviously, this can lead to chaos, since it means that if Dad lives in one school district and Mom lives in another, they can each enroll and unenroll the children independently of the other having a say about it. Independent Rights on Education pretty much only work if the parents are willing to co-parent, at least to some extent.

 

Joint often sounds the best. In reality, though, it too can lead to further litigation if the parents can’t get along. In order for Educational Decisions to be made Jointly, the parents have to agree on them.

 

Private School in Texas

 

So how does Private School figure into all of this? Where in any of that does it speak to Private School? Or Homeschooling?

 

Homeschooling is not the focus of this article, but I have written briefly on it here – Homeschooling: Who gets to decide?

 

Private School has a similar analysis to some extent, except that usually, the more significant issue with it is the payment of tuition. So, some of the analysis depends upon when the questions are asked and what all is needed.

 

If parents are facing a Texas Divorce and know that they want to consider Private School for their children, it is wise to get those issues on the table upfront. The only possible exception to this would be if the parent that is going to be named Primary – assuming that’s clear, which is often isn’t – is willing to pay the entirety of the cost of any Private Schooling done.

 

If that’s the case, so long as the parent ensures that they have the Right to Make Educational Decisions, there shouldn’t be any significant concern. But there would need to be a concern for how the Right to Make Educational Decisions is worded. If the Right is not going to be awarded Exclusively, even with the willingness to pay for the school, the other parent may have an ability to interfere with the decisions made without having to go back to Court to do it.

 

In most situations, though, the concern will be over:

 

1. Are the Children going to go to Private School?

 

2. Which Private School will the Children Attend? and

 

3. Who will pay for the Private School?

 

Or, put in Divorce and Custody Court terms:

 

1. Who gets to decide whether the Children will go to Private School? (Which parent gets to determine whether the Children go to Private School?)

 

2. Who gets to decide which Private School the Children will attend? (Which parent gets to decide which Private School the Children will attend?)

 

3. Who pays for what percentage of Private School, and how will it be treated in the Order?

 

It is certainly not unusual for a fact pattern to exist in which one parent wants the kids to attend private school but wants the other parent to pay for all of it. Frequent disagreements arise concerning whether each party will have to pay for part of the cost and what happens if one party of the other defaults on that obligation.

 

So, if you can get “out in front” of some of these controversies by knowing that they are likely to arise in the future in your case, it is best to address them in either settlement or litigation when first going through a Divorce or Custody Case.

 

If these questions arise in your case after the Divorce Decree or Custody Order (also sometimes referred to as a Parenting Plan) have been put in place, there are no easy answers. The starting point is to look at who has the Right to Make Educational Decisions. After that, though, you are on your own to try to negotiate and/or seek a Modification of the Order.

 

What do the Texas Courts Say

 

Because of the way the system works, it is challenging to know what “your Judge” will do. If you are facing a Divorce or Custody Case, you are in a Trial Court. In our State system, Trial Judges don’t publish their decisions or reasoning, other than in the Orders that are put in place, and sometimes in “Findings.”

 

Theoretically, it would be possible to try to find a case with facts like yours and see what happened in that case. But given that about 97% of cases settle, the odds of finding a case just like yours and getting any kind of meaningful knowledge about what is likely to happen in your case would be difficult.

 

Therefore, most of what we can see about the law on Private Schooling is found in Appellate Court decisions. When a case gets appealed, if it is followed through to a conclusion, i.e., it doesn’t settle on Appeal, the Court will publish an Opinion. In those, we can learn some things about how Private School can and maybe should be handled.

 

In the Interest of H.L.B.

 

In January of 2020, the Dallas Court of Appeals came out with an enlightening opinion regarding Private Schooling.

 

Mom and Dad divorced in 2015. In their agreed divorce decree, they had the following two provisions:

 

2. Choice of Schools —

 

The Court finds that [the Child] is currently enrolled at [the name of a particular private school].

 

IT IS THEREFORE ORDERED AND DECREED that [the Child] shall continue attending [the private school] for the calendar year 2015-2016 and for all subsequent years thereafter, as agreed to by the parties.

 

IT IS ORDERED AND DECREED that [the Other Child] shall attend [the same private school], if accepted, for the calendar year 2016-2017 and for all subsequent years thereafter, as agreed to by the parties. In the event [the Other Child] is not accepted at [the private school], IT IS ORDERED AND DECREED that [the Other Child] shall attend [the name of a particular public school] for the calendar year 2016-2017 and for all subsequent years thereafter as agreed to by the parties.

 

No changes in enrollment or participation shall be made without the consent of both parents.

 

…

 

5. Educational Expenses

 

[Father] shall pay 100% of the cost of the private school tuition at [the particular private school].

 

All other school expenses incurred on behalf of either Child, including uniforms, class trips, activity fees, sports, book fees, and fees for AP classes at [the private school] or at a public school, shall be paid equally by the parties. IT IS THEREFORE ORDERED that [Mother] shall pay 50 percent and [Father] shall pay 50 percent of all “other school expenses” as set out hereinbelow.

 

The party who incurs a school expense on behalf of a child is ORDERED to furnish to the other party all forms, receipts, bills, and/or statement reflecting the school expense within thirty days after he or she receives them. The nonincurring party is ORDERED to pay his or her percentage of the school expense by reimbursing the incurring party for any advance payment of the school expense within thirty days after the nonincurring party receives the forms, receipts, bills and/or statement. These provisions apply to all school expenses that are incurred while child support is payable for any child.

 

Both of those provisions were in a section of the Decree entitled “Other Parenting Plan Provisions.” Thereafter, there was a section entitled “Child Support.” In it, the parents had agreed as follows:

 

“IT IS ORDERED that no party will owe child support to the other party.”

 

(It is interesting to note here that there are some Texas Judges that have declared in open Court that they “will not sign a Decree unless somebody is ordered to pay Child Support.)

 

Just three years later, in 2018, Dad filed a Modification Case in which he asked the Court to remove his obligation to pay for any of the Private School and to order the children to go to Public School.

 

Mom, through her attorney, asked the Court to dismiss the case based on the fact that the father had contractually agreed to the Private Schooling and had entered into a contract, within the Decree, to pay for 100% of the Private School Tuition. Mom’s position was that since the agreements were contractual in nature, the Court did not have the power to modify them. She asked the Judge to dismiss Dad’s case based on a Lack of Jurisdiction. (A motion to Dismiss for Want of Subject Matter Jurisdiction – Jurisdiction means Power.)

 

The Trial Court agreed. Dad’s case was dismissed, and he appealed to the Dallas Court of Appeals.

 

The Court of Appeals agreed with Dad on the Jurisdictional argument. They stated:

 

“…whatever label the parties place upon it, an obligation to pay a minor child’s school tuition is necessarily an obligation to provide child support.”

 

The Court distinguished cases in which parents agree during Divorce or Custody Cases to pay for college tuition. On that issue, they stated:

 

“…’ post-majority support is not child support,’ and an agreement to pay a child’s college tuition after the Child reaches the age of majority can be enforced contractually.”

 

Significantly, the Appellate Court pointed out that any labeling or construction by the Trial Court in an attempt to bolster an argument that tuition is not child support is meaningless to the Appellate Court. They stated:

 

“…a trial court’s finding as to whether an obligation imposed under a decree qualifies as child support is a legal conclusion that is not binding on an appellate court.”

 

So, does all of this mean that the Father won? Does it mean that he does not have to continue to pay for the Private School Tuition? Does it mean that the children will have to now go to Public School?

 

Absolutely not.

 

The decision of the Appellate Court simply means that the case goes back to the Trial Court. There, the Judge will have the power to say, “The Appellate Court has found your obligation to pay Private School Tuition to be a child support obligation, and I’m not modifying your obligation.” In fact, the Court could increase the obligation.

 

The case is instructive, however, on several issues. Chief among them is that any agreement or order regarding payment of Private School tuition is subject to future modification – regardless of what the parents or the Trial Judge says.

 

What if Private School was never agreed to?

 

Several Texas cases have considered whether a judge can order a parent to pay Private School tuition, even if they have never agreed to it. The answer is a simple: Yes.

 

The more complicated answer is: Yes if there are sufficient reasons presented to the Court.

 

If the parents disagree on whether the Child should go to Private School, and the Judge agrees with the parent that wants Private Schooling, the problem is solved by the Judge giving the parent that wants Private School the Exclusive Right to Make Educational Decisions.

 

The Judge then has the discretion to do pretty much whatever he or she wants regarding the payment of tuition, if there are any serious justifications made for the Private Schooling.

 

In the case of Scott v. Younts, the Corpus Christi Court of Appeals found sufficient reasons to be:

 

“The child needs the structure and self-esteem that a private school could provide.”

 

In the case of Everitt v. Everitt, a Houston Court of Appeals stated that the following was sufficient:

 

“Given the child’s good academic performance and social adjustment at the private school, Jo Ann’s decision to enroll him there after having tried the public school for one year, and Thomas’s decision to withdraw his legal opposition to that enrollment on the advice of the guardian ad litem, we conclude that the trial court was presented with sufficient evidence of the child’s best interest and need to remain in the private school.”

 

In Everitt, the Mom had put the Child in Private School after the Divorce started, but before it came to trial. There is no way of knowing what the outcome would have been if she had waited and simply argued for Private School at trial, while the Child was in Public school.

 

Making Assumptions

 

In the case of In the Interest of A.E.A., the Fort Worth Court of Appeals dealt with an issue that arose due to making assumptions. During the Divorce, the Parents apparently both assumed that their Child would attend a certain Private School. Their Decree included the following:

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“Special Provisions for Education:

 

18. The Court finds that it is in the best interest of the minor Child to continue attending Crème de la Crème pre-school until such time as the minor Child shall begin attending elementary school, AND IT IS SO ORDERED.

 

19. The Court finds that it is in the best interest of the minor Child to attend Greenhill private school when he becomes eligible, AND IT IS SO ORDERED. The Court further finds that the parties may agree in writing for the minor Child to attend a different school, and in that event, the minor Child shall attend the school so agreed upon, AND IT IS SO ORDERED.

 

 20. The Court finds that FATHER shall continue to pay the expenses for the minor Child to attend Crème de la Crème, AND IT IS SO ORDERED.

 

21. The Court finds that FATHER shall pay all tuition and expenses of the minor Child to attend Greenhill private school including expenses necessary for the minor Child to participate in school activities, AND IT IS SO ORDERED.

 

22. The Court finds that since it will be necessary for FATHER to make arrangements to pay for the expenses of attending Greenhill private school, that FATHER shall make any necessary application, enroll the minor Child, and make any necessary arrangements with Greenhill private school in order for the minor Child to attend, AND IT IS SO ORDERED."

 

Unfortunately, after the Decree was signed, the Child “completed pre-school and kindergarten at Crème de la Crème but was not granted admission to Greenhill.” Instead, he “attended elementary school in the Plano Independent School District.”

 

Neither the parents nor the Court had made any contingency plans in the Decree for what would happen if the Child did not end up going to the Private School anticipated.

 

Based upon that and the apparent fact that the parents could not get along well enough to co-parent on the issue of education, the Father filed for a Modification of Custody and asked that he be given the Exclusive rights to make Educational Decisions. The Mother filed a Counterpetition to Modify, asking that she be given the Exclusive Rights on Education and be awarded Child Support.

 

The Court sided with Mom, and Dad lost significantly, both at Trial and on Appeal.

 

Paying Private School Tuition When Not Ordered

 

In 2016, the Texas Supreme Court was asked to consider a case in which a Father paid Private School tuition, even though he was not ordered to do it. He paid it directly, instead of paying a smaller amount of child support to the Mother, apparently because the Mother wanted the Child to attend the Private School and wanted the Father to pay for it.

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The arrangement was all agreed upon as it happened and as Dad was paying the money, but then ten years later, the Mom decided that she may be able to have her cake and eat it too. Mom filed an enforcement action against Dad saying that even though he paid the Private School tuition that she owed, he should not get Child Support Credit for it, because he did so pursuant “only” to an agreement with her, and not a Court Order.

 

The case was Ochsner v Ochsner, and I have written previously and briefly on it previously here.

 

The Supreme Court pointed out that this was not a case in which a Father “got” the Mother to agree to take less in Child Support that the Court had ordered. In fact, they pointed out,

 

“It is undisputed that [the Father] paid over $20,000 more than the divorce decree required—all of which contributed to his daughter’s upbringing. But he did not pay the required installments through the registry. He has nonetheless covered the costs of schooling his daughter, a far cry from abdicating his parental responsibility.”

 

The Court ruled that the Mother could not get a double recovery, since she had already received the benefit of the Tuition Payments towards the debt that she had incurred in agreeing to them.

 

But, the Court warned:

 

“Our decision today should be confined to the facts presented. It should not be read to hold that tuition payments always qualify as child support. Further, it should not be read to encourage spouses to make direct payments and thereby bypass the registry or other payment mechanisms set forth in the divorce decree. At a minimum such behavior may needlessly complicate proceedings. It carries risks regarding matters of proof, and under different circumstances a trial court might well be within its discretion in refusing to consider such payments. But for the reasons discussed, in today’s case [the Father’s] direct payments discharged his child-support obligation.”

 

So, the safest route is to get everything in an Order, and then follow the Order. Even though Mr. Ochsner won on Appeal, finally, it took years and no doubt an incredible amount of money to do so.

 

Take-aways

 

• The Right to Make Educational Decisions is important. It shouldn’t be an afterthought in negotiations and trial strategy or treated as insignificant.

• If the best you can get in negotiations or at trial is to be the parent that gets “consulted with,” at least try to get some meaningful definition inserted in the Order.

• Consider having specific provisions included in your Order or Decree concerning Homeschool or Private Schooling.

• Realize that everything concerning the Children is modifiable later, regardless of how you frame it in the Decree or Order.

• The Rights given on a temporary basis in Temporary Orders can be life changing. They matter, so they should not be taken lightly.

• If you want your child to go to Private School, you may stand a better chance of getting the Judge to Order it by enrolling and starting prior to Divorce or Custody proceedings – not just waiting till trial and asking that it be ordered in the future.

• If you’re going to make assumptions about what the future will hold, be sure you include contingencies, in case you are wrong.

• If you are going to make agreements concerning payment for Private School, you are safer by having them memorialized in a Court Order.

• Private School can be considered a “need” of a child and the tuition ordered as “Additional Child Support” or “Above-Guideline Child Support.”