Divorce is never easy. But when you have children, some of the most contentious issues that will arise during your divorce will involve child custody and money. If you have a child in private school or intend to put your child in private school, it's a good idea to ensure that you and your co-parent are on the same page about your educational plans and your plans for paying for private school tuition. Standard custody orders don't typically include private school tuition as part of child support awards. Moreover, only a parent with legal custody can make educational decisions for your child. So, you'll want to discuss your expectations and hopes for private school and its tuition with an experienced family law attorney as soon as you begin the process of divorce or separation.
Who Gets Custody?
In determining custody and visitation in New Jersey, the court will look at the best interests of the child:
In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.
N.J.S.A. § 9:2-4 (1997). However, the court begins this analysis by assuming that all children should have "frequent and continuing contact" with both parents:
The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.
Id. The court can award:
- Sole legal and physical custody to one parent with appropriate parenting time to the other parent;
- Joint physical and legal custody to both parents providing: "(1) provisions for residential arrangements so that a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare; or
- Any other custody arrangement in the best interests of the child.
Id. at § 9:2-4(b-c).
1. Legal Custody
In New Jersey, the parent with "legal custody" may make "major decisions regarding the child's health, education and general welfare." Making major "educational decisions" should include where your child will attend school. If both parents have joint legal custody, they must decide together.
2. Physical Custody
Under New Jersey law, "physical custody" refers to the parenting time of each partner. The court can grant joint physical custody to both parents or grant primary or sole physical custody to one parent. The parent with primary physical custody is typically the parent with whom your child lives most of the time.
3. Custody Order
The two of you may agree on a custody order, or the court may enter one for you. The order, sometimes called a parenting plan, will have all the details of physical and legal custody and child support. Your parenting plan will also set forth the details for visitation, make-up visitation, holidays, and parenting exchanges. You can also include private school or school choice issues and tuition payments in your custody order, which will remain in force until a judge modifies it.
School Choice Issues
Whether your child will attend school should be a joint decision if you and your co-parent have joint legal custody. However, the two of you may disagree on the best school option for many reasons, including:
- One of you doesn't think the current school is the best environment
- The two of you disagree on religious education
- One of you doesn't think the current school is the best academic choice
- Your child is struggling in their current school
- One of you doesn't like the extracurricular or academic options at a particular school
If you have joint legal custody, you and your co-parent can change your child's school through mutual agreement. Or, if you can't agree, by court order. If the two of you can't agree, you may have several options, including:
- Having your attorneys mediate an agreement between the two of you
- You can use a formal mediator to resolve the issue
- You can ask the court to decide the issue through a court order
To determine the best decision for child custody, the New Jersey family court will look at the "best interests of the child." Using this standard, the court will look at a great deal of information about your child and their school options to decide. Factors the court may consider include:
- Grade, teacher reports, progress reports, and report cards
- Your child's scores on standardized tests
- Entrance exam scores
- Psychological reports from a school psychologist, a private counselor, or medical professionals
- Any educational evaluations or neuropsychological reports
- A special education evaluation or individual education plan
- The thoughts of the parents, friends, teachers, and coaches
In looking at multiple schools for your child, the court may look at:
- Both schools' standardized test scores
- The graduation rates of each school
- Whether gifted or special education programs are available
- Whether each school has music, foreign language, physical education, and art programs
- The availability of extracurricular activities at each school
- The educational and academic opportunities available at each school
- Crime and disciplinary rates at each school
- The academic offerings, including AP or IB programs at each school
- Technology in each school
- The distance or commute time to each school
- Transportation to each school
- Whether your child will have friends and a supportive community in each school
You may want to introduce testimony from teachers, counselors, coaches, or other professionals about your child's performance and the benefits of a school. The judge may also want to hear your child's preferences.
1. Who Makes the Final School Decision?
In Madison v. Davis, the Chancery Division held that the primary residential parent has the final decision in private preschool choice when the preschool is being used primarily as a daycare, even if the parents have joint legal custody. The court adopted a seven-step analysis in its decision:
- When the preschool is used primarily as a daycare, the parent with primary physical custody has the initial right to select the school
- The parent with primary physical custody doesn't have unlimited decision-making powers. Rather, the choice must be reasonable
- Absent a court order, the parent must keep the other parent informed about a decision to change preschools
- The other parent, as a joint legal guardian, has a right to investigate and evaluate information about a new school
- Merely complaining about the "reasonableness" of the primary physical custodian's choice is not enough; the non-custodial parent must demonstrate "that there is a specific, more reasonable alternate plan" available
- If the court finds that the physical custodian's choice is unreasonable, they may override the decision
- If one parent acts unreasonably, the court may impose financial sanctions
2. Real World Example
In Rothstein v. Warschawski, the New Jersey Appellate Division took up the parties' post-divorce dispute over which private religious school their daughter should attend. Both parties agreed she should attend a religious school, but one parent's choice was accredited by a religious body, and the other was not. While the family court originally ordered the mother to enroll the child with the accreditation, the mother appealed.
The parents' divorce decree did not include selecting a private school. Still, the parties agreed to make the decision jointly and split the costs of private school tuition if they mutually agreed such a school was in their daughter's best interests. On appeal, the appellate court held that the original court hadn't considered whether one school had limitations in providing an adequate secular education for the daughter. On remand, the appellate court held that the trial court "should consider Yael's 'peer relationships, the continuity of friends' as well as her 'emotional attachment to school and community that will hopefully stimulate intelligence and growth to expand opportunity.'"
New Jersey Child Support & Private Schools
Private school tuition isn't typically included in a New Jersey child custody order or parenting plan. You may need to specifically ask the court to include private school tuition payments in your child support order.
1. New Jersey Child Support Guidelines
New Jersey has statutory guidelines that the family court will use to determine how much support a non-custodial parent should pay. The child support guidelines contain a rebuttable presumption that "an award based on the guidelines is assumed to be the correct amount of child support unless a party proves to the court that circumstances exist that make a guidelines-based award inappropriate in a specific case."
New Jersey guidelines "assume that the parents are sharing in the child-rearing expenses in proportion to their relative incomes. To the extent that this is not true (i.e., if one parent is paying all costs associated with housing for the child from his or her own income) and can be proven to the court, a guidelines-based support award may require adjustment." The court can decide that the expense of private school tuition is reasonable for your child in some cases.
2. Who Pays for My Child's Private School?
Judges will typically follow New Jersey's child support guidelines. However, they can deviate from the guidelines for issues such as private school tuition. "If the court finds that the guidelines are inappropriate in a specific case, it may either disregard the guidelines or adjust the guidelines-based award to accommodate the needs of the children or the parents' circumstances." To deviate from the guidelines, the court must be specified "in writing on the guidelines worksheet or in the support order. Such findings should clarify the basis for the support order if appealed or modified in the future."
New Jersey's guidelines even include private school tuition as "expenses that may be added to the basic child support obligation:"
Other Expenses Approved by the Court –
These are predictable and recurring expenses for children that may not be incurred by average or intact families such as private elementary or secondary education, special needs of gifted or disabled children, and visitation transportation expenses. The addition of these expenses to the basic obligation must be approved by the court. If incurred, special expenses that are not predictable and recurring should be shared by the parents in proportion to their relative incomes (i.e., the sharing of these expenses should be addressed in the general language of the order or judgment). Special expenses not included in the award should be paid directly to the parent who made or will make the expenditure or to the provider of the goods or services.
N.J. R. Ct. App. IX-A § 9 (emphasis added).
3. New Jersey Court Considerations for Tuition Payments
While the New Jersey support guidelines mention private schools, the courts have developed a framework to determine whether a parent should contribute to private school tuition. In Hoefers v. Jones, the Chancery Division discussed a New Jersey court's considerations when ordering a non-custodial parent to make private school tuition payments:
(1) Ability of non-custodial parent to pay.
(2) Past attendance of one or both parents at that or a similar private school.
(3) Whether children were attending private school pre or post divorce.
(4) Prior agreement of non-custodial parent to pay, to send children to private school.
(5) Religious background of the parties, their children.
(6) Are special educational, psychological and/or special needs of child met, advanced by such private schooling?
(7) Generally, is it in the child's best interest to attend, or to continue to attend, private school (is the academic environment in child's best interest?).
(8) Whether court order or agreement of parties prefers specific right of school choice on residential custodial parent.
(9) Were actions of residential custodial parent to enroll or to continue to enroll the children reasonable under the circumstances?
(10) Is such private school tuition permitted or authorized as part of that state's child support guidelines, or by other law(s)?
(11) Ability of child to respond, prosper from this educational experience; will such schooling be of particular benefit to him or her?
(12) Lack of present, past non-custodial parental involvement in children's education.
(13) Degree of involvement of custodial parent in children's education (is it extensive?).
(14) Is residential custodial parent's views, desires consistent with past practices regarding private school education?
While it may seem easiest to have a court decide the matter of a private school selection or tuition payments for you, this can be an expensive option, particularly if you and your co-parent have a contentious relationship. Private school choice is a specialized area of family law, and you should discuss your options with an experienced New Jersey family lawyer well versed in these issues.
4. New Jersey Child Support and College Tuition
New Jersey child support guidelines don't automatically include college tuition payments in their child support orders:
Appendix IX-F support schedules shall not be used to determine parental contributions for college or other post-secondary (hereafter college) expenses nor the amount of support for a child attending college. The court may apply the child support guidelines at its discretion to support students over 18 years of age who commute to college.
To determine if continued support for a child over 18 who is attending college, the court will primarily consider minor children who reside in the home. Only after that will the family court determine whether "obligations for the cost of post-secondary education and/or continued support for a child attending college" are reasonable.
Hire an Experienced New Jersey Family Lawyer
If you're in the midst of a divorce, or if you and your co-parent are having a hard time agreeing on educational decisions for your child, you need a skilled New Jersey family lawyer to guide you. Attorney Joseph Lento and the experienced team at the Lento Law Firm can help. The legal team has been helping New Jersey families through divorce, support, and custody issues for years, and they can help you too. Give them a call at 888-535-3686 or contact them online to make an appointment.
