As parents prepare their children to return to school, courts struggle to sort out back-to-school issues for separated and divorced parents who cannot agree where their children will attend school. These flashpoints are most likely to happen when children are transitioning between elementary, middle, and high school; or when parents live in different school zones.

Unless ordered otherwise, parents have joint and equal legal custody of their children. This means that neither parent has a greater say than the other in regard to education or, the health and the well-being of their children. Courts are loathe to interfere with such important rights so they try to resolve any impasse by giving tie-breaking authority on distinct legal custody disagreements. For example, courts can order that one parent has tie-breaking authority over what school the children will attend, after good faith discussions stall. This approach has its draw-backs, of course, because the parent with tie-breaking authority can indulge in all sorts of mischief and select a school that is inconvenient for the other parent, or that is based upon pedagogy that the other parent abhors.

There is a final and very important consideration in all of this--if a parent believes there is going to be a problem with school selection, the parent must act as early as possible. Even if the parents are trying to mediate the school problem, they should not wait to file with the court. The case must be filed early enough for the court to place it on its normal docket. This occurs because courts rarely consider educational issues to be emergencies, and therefore rarely move such cases to the front of the line. Typically, this means that if the parent believes there will be a Labor Day school problem, then the parent should be filing for tie-breaking authority the preceding January at the latest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.