When parents have joint custody, do both need to approve of a child moving out of state for school? - Child Custody Law Questions and Answers- LawQA.com

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When parents have joint custody, do both need to approve of a child moving out of state for school?

When parents are divorced and have equal and joint custody of their child, does a child need both parents approval in order to go away to something like a private school or college prep school? it is a boarding school scenario. If the child does need the approval of both parents, then can the child appeal to a judge? Will the child need to hire a lawyer? What can be done? (The child in question is nearly 16 years old and wishes to spend their last two years of high school at an advanced private school, but one parent will not agree to let the child go.)

Harris Law Firm
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In the State of Oregon, joint custody would require that both parents agree. The parent who is in favor of the child attending this school could make a motion to the court. In Oregon, the rule is best interest of the child. It sounds like that school would be in the child's best interest.

Answer Applies to: Oregon
Replied: 1/5/2011

Answer By Thomas Connelly
The Connelly Firm P.C.
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Yes. Joint legal custody means that both parents must consent.

Answer Applies to: Pennsylvania
Replied: 1/5/2011

Warner Center Law Offices of Donald F. Conviser
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Under the circumstances that you relate, you would best file an Order to Show Cause seeking an order modifying physical and legal custody to permit you to send your son to the boarding school he wants to go to, and you should file and serve a witness list of nonparty witnesses comprising your son and any other person (other than you) whose testimony would be relevant to the issue - including a brief description of the anticipated testimony of each nonparty witness. Your son can't appeal to the judge independently of your Order to Show Cause, but may be allowed to directly or indirectly present his desires to the Judge, as indicated below. The Court may, if you request in your Order to Show Cause, appoint Minor's Counsel to represent your son, but is not required to do so.

Look at the Judgment or Order awarding "joint custody", and read its provisions regarding joint legal custody, to determine whether the court specified that the consent of both parties is required with regard to your son's education, and then read its provisions regarding joint physical custody, to determine whether sending your son to the out-of-state boarding school would be inconsistent with the physical custody order.

I would assume that sending your son to the out-of-state boarding school would be inconsistent with the physical custody order awarding joint physical custody, insofar as it relates to your wife's physical custodial rights.

Family Code Section 3002 defines Joint Custody as joint physical custody and joint legal custody.

Family Code Section 3003 defines Joint Legal Custody to mean that both parents shall share the right and responsibility to make the decisions relating to the health, education and welfare of a child.

Family Code Section 3083 provides that in making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parties is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the Court.

Family Code Section 3150 provides (a) If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in California Rules of Court Rules 5.240, 5.241 and 5.242. (b) Upon entering an appearance on behalf of a child pursuant to this chapter, counsel shall continue to represent that child unless relieved by the court upon the substitution of other counsel by the court or for cause.

Family Code Section 3042 provides that (a) if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody; (b) In addition to the requirements of Evidence Code Section 765(b), the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences. [As of January 1, 2012, an amended version of Family Code Section 3042 will come into effect].

Family Code Section 217, effective January 1, 2011, provides in relevant part: (a) At a hearing on any order to show cause or notice of motion, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

Your Order To Show Cause should be supported by 1) a declaration by you addressing the change you seek and detailed facts relating to your research of and dealings with the boarding school and your son regarding his request to go to the boarding school, along with your proposed custodial plan; 2) a detailed declaration by your son regarding his desire to go to the boarding school, his reasons why, and demonstrating his intelligent preference and his capacity to reason, and 3) a declaration of any other person with relevant testimony (such as his principal, counselor, or teacher) relating to and justifying your son's desired educational (and physical) move.

Your witness list should include your son and a brief description of his anticipated testimony.

Answer Applies to: California
Replied: 1/4/2011

Answer By Paris Kalor
Saddleback Law Center
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If the parents have joint legal custody, then both parents must agree on decisions regarding welfare, education, safety of the child.

The parent who supports the child's position with regards to the future education, must petition the court. The court then makes a decision based on what is in the best interest of the child. Usually it would be more helpful to have recommendations from a custody evaluator.

Answer Applies to: California
Replied: 1/4/2011

Answer By Joseph A. Katz
Law Office of Joseph A. Katz
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The parent who agrees to have the child go to the out-of-state boarding school should bring an Order to Show Cause (OSC) on behalf of the child for a Court Order allowing the child to go. As a practical matter, the child is too old for the non-consenting parent to prevent him from going. The child is old enough to move to be emancipated now, as a last resort. I am not talking about any concerns relating to money or funding of the tuition, of course.

Answer Applies to: California
Replied: 1/4/2011

Answer By Roy L. Reeves
Reeves Law Firm, P.C.
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You need to first look at your divorce decree/custody orders. Does one parent have the exclusive right to make educational decisions? If so, that is your answer. If that power is joint or mutual, then again, you have your answer.

The child can hire a lawyer and seek emancipation but that is not easy to get. If emancipated, the child can make his her own decisions.

My suggestion is to talk to the recalcitrant parent. He or she needs to think rationally and long term. I for one, would not want my daughter moving off to school unless I am going with her - but I also understand that prep schools offer educational opportunities like no other. If finances allow it, does he or she want to hurt the child's opportunities in life? They can, legally speaking, and there is little recourse. The parent in agreement can petition the Court to modify the Custody Orders and allow it - the parent should file this, not the child. Ask the Court for permission and explain why it is in your child's best interest. The Court may not grant permission per se, but it very well may grant you the exclusive right to make educational decisions - at which time, the parent with that power will decide if your child gets to go.

Hope that at least helps a little. My office is in Plano and I handle cases in Collin and Dallas Counties. If you live in this area, I would love the opportunity to meet with you and discuss this further. Just let me know.

Answer Applies to: Texas
Replied: 1/4/2011

Answer By Tim W. Avery
Law Office of Tim W. Avery
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You need to review your divorce decree to determine how the parental right of making education decisions of the child was allocated. It should state whether said right to make said decision was allocated 1) exclusively to one parent; 2) to both parents with each having the right to act independently; or 3) to both parents with said decision having to be made by joint agreement. Furthermore, review your decree to see if there was a geographical restriction placed of the primary residence of the child. There may be no restriction or there may be a restriction that the child has to reside within a certain geographical area. If the education decision making does require a joint agreement and/or there is a geographical restriction, you may need to file a motion to modify your divorce decree.

Answer Applies to: Texas
Replied: 1/4/2011

Answer By Matthew E. Lax
Cutter & Lax, Attorneys at Law
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The parent requesting that the child be allowed to move needs to seek a move away order from the court. The court will break the deadlock and decide one way or the other what is in the best interest of the child. This can be a complicated process which an attorney can help you with. If you need legal representation in this matter feel free to contact me at the contact info below.

Answer Applies to: California
Replied: 1/4/2011

Answer By Diana K. Zilko
Diana K. Zilko, Attorney at Law
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Typically, when both parents have equal custody, they both must agree on all important decisions, including medical care and schooling. Even if the child is 16, they are not old enough to make the decision on their own. The parent who wants to allow the out-of-state schooling can always file a motion and ask the court for an order permitting such.

Answer Applies to: California
Replied: 1/4/2011

Maclean Chung Law Firm
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Either both parents likely need to agree or the court can also order the child be allowed to attend school if it is in the best interest of the child.

It may be necessary to request that the court appointment a minor's counsel to represent the child in court. At the age you mentioned, the wishes of the child are weighed heavily by the court if reasonable.

Answer Applies to: California
Replied: 1/4/2011

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