After a divorce, parties typically share “legal” custody of their children. Legal custody does not have one definition, and in Virginia the court has the statutory authority to fashion a legal custody decision which it deems to be in the best interests of the child. The judge can order that the parties share equally in decision-making authority for educational matters related to the child, or can give final decision-making authority to one party or the other.
When parties decide to resolve their custody issues through an agreement, it is very important to consider how decisions will be made regarding the child’s education in the future. It’s very common that parents will reach an agreement when a child is very young but fail to consider the future educational considerations and decisions that will need to be made. Although it often seems obvious where a child should go to school, there are times when a shared physical custody arrangement could very well lead to disagreement on that question, should the parties reside in different counties. Parents should make it a priority in their negotiations to discuss how educational decisions will be made and, more specifically, the role that each party will have in making such decisions. It is advisable to be as specific and clear as possible, because open-ended or nebulous language or clauses will surely lead to future disagreements and possible litigation.
It is also very important to include language in any custody agreement providing for possible remedies when disagreements do occur. For example, one parent can have “tie-breaking” authority when the parties clearly disagree on an educational issue. Or, the parties can agree to meet with a mediator to work towards a resolution before either party seeks a remedy in court.
Parties may also be well-served to included language in their agreements regarding consideration of the child’s input once he or she is old enough to express a preference on where to go to school. Virginia Code Section 20-124.3(8) requires a court to consider a child’s preference if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.
If you find yourself with concerns or questions about how you and your spouse will make educational decisions for your child in the future, be sure to consult with an experienced family law attorney. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Leesburg, Fairfax, Manassas and Fredericksburg, Virginia. If you are a resident of Northern Virginia, contact us to schedule a consultation today.