By: E.A. Putman
I have had my share of nasty custody disputes. Many of those disputes revolved around who will be the primary parent or have sole custody of the children. These terms are a Hollywood myth much like “irreconcilable differences.” You hear it on television and it definitely exists in other jurisdictions, but in Texas, we have different terms, standards and theories.
Even though these key phrases are not used, Texas family lawyers have a good idea of what a parent is requesting when they say they want to be primary. They want to make the key decisions in the child’s life–primary residence, health care and education. As students return to school during COVID-19, many parents are faced with decisions that may be in conflict with the other parent’s wishes. Mom may prefer virtual learning while Dad may opt for in person education. Mom may want to switch to a better performing public school while Dad may want to enroll the child in a private institution. But, who has the final say?
Who has the right to make decisions concerning the child’s education?
Parents are generally appointed as joint managing conservators meaning they share in rights in duties. Furthermore, the rights that the parents share are usually rights that are made by joint agreement of the parents, independently by each parent or exclusively by one parent. TFC Sec. 153.071. Ideally, parents would be able to come to an agreement absent a court order on educational decisions, but that is not always the case.
Education is one of those rights that has to be exclusive to one parent otherwise it can be contentious and litigious. If it is subject to the agreement of the other parent, what happens if the parents never agree? Who will the tie breaker be? Likewise, if each parent can independently make decisions over education, what happens if one parent elects to retain the child in a grade due to poor performance and the other parent decides to advance the child?
What about the rights of the “non-primary parent”?
Although one parent has essentially the “primary” right concerning education, the other parent has significant rights regarding the child’s education process.
- All parents have the right to be designated on the child’s records as a person to be notified in case of an emergency. While it is common for the primary parent to list a grand parent or stepparent on emergency forms, the other parent should be listed as well (and likely prioritized over any other person).
- All parents have the right to receive information from the other parent concerning the education of the child. This includes the name of the child’s school, their teachers, their curriculum. Failure for a parent to provide this information without reason is frowned upon by the court.
- All parents have the right to confer with the other parent to the extent possible before making a decision concerning the education of the child. Though the “non-primary parent” may not make the final decision, they do have the right to be a part of the process and make their wishes known.
- All parents have the right to attend school activities, including school lunches, performances, and field trips. In the era of social distancing and limiting contact, the parents may have to defer to the rules established by the educational institution on this right.
- All parents the right to consult with school officials concerning the child’s educational status, including school activities. The primary and non-primary parent are on similar footing in consulting with school officials. While the primary parent have the authority to make the decisions, the non-primary parent has the right to receive recommendations and information from the school officials.
Each parent has the duty to inform the other parent of the child in a timely manner of significant information concerning the education of the child. If the child is not performing well in school, if the child is performing well and may be considered for a commendation, a parent not only has the right to know, but the duty to update the other parent.
Under the Texas Family Code, “the best interest of the child shall always be the primary consideration of the court.” Sec. 153.002. As it relates to who will make the decisions concerning the education, the court will always keep the child’s best interest in mind.
The Putman Firm, PLLC is a family law litigation firm that handles a wide array of family matters including divorce, custody, visitation, child support, family violence assault cases, protective orders (criminal and civil). If you need assistance in determining your rights as it relates to your child’s education, please do not hesitate to contact us at (281) 501-9033.
Your health and safety is paramount to us during this COVID-19 crisis, but we understand the need for expert advise. Thus, we also offer phone and video consultations through our Your Family Law Attorney portal.