If parents have joint legal custody and cannot make a decision about an issue, then one of the parties must file a motion with the court, and the judge will decide it after what is called a "Lombardo” hearing. It does not appear that there are any “threshold” issues to prove such as the proper cause or change in circumstances that would be required by MCLA 722.27 or Vodvarka v Grasmeyer, 259 Mich App 499 (2003), if the only issue is a parental dispute. There are two issues that often result in disputes between parents with joint legal custody: moves out of state with the child(ren) and changes in schools. This article discusses decisions regarding the choice of schools.
While Lombardo hearings are required for parents with joint legal custody who dispute decisions (such as changes in child care providers, orthodontia, therapy, etc.), there is another consideration with regard to a change in school. In Pierron v Pierron, 282 Mich App 222 (2009), the Michigan Court of Appeals was faced with a case where a parent with primary physical custody decided, unilaterally, to move and change the child’s school. The problem was that there was no way the father could continue to take the children to school during his parenting time if he did not move closer to the mother’s new home.
At the time of the Pierrons’ divorce, the parties lived in Grosse Pointe Woods, and the two children attended Grosse Pointe Public Schools. After the divorce, Mrs. Pierron inherited money and bought a house in Howell. She then attempted to enroll the children in the Howell Schools without Mr. Pierron’s consent. The father disputed the change in schools, and the court then became involved.
The first step in a school choice case is to determine if there is an established custodial environment as that is defined by MCLA 722.27. After considering the child’s relationship to the respective parents, their parental involvement, and the parenting plan, a court must consider whether there is presently a “shared” custodial environment or whether, instead, there is an established custodial environment with just one of the parents.
The next question is whether a proposed change in schools would change the existing custodial environment. If it would, then the parent requesting the change must present clear and convincing evidence that a change in the established custodial environment will serve the child’s best interest—not just that a change in schools will serve a child’s best interest. Further, when a court is determining whether to change an established custodial environment, the court must analyze every factor under the best interest test set forth at MCLA 722.23.
In the Pierron case, the trial court in that case held that the established custodial environment would change if the child attended the Howell Schools; however, the Court of Appeals held otherwise:
We first note that the proposed change of school districts would not have changed the actual custody arrangements in this case. Defendant has at all times had primary physical custody of the children since the parties' divorce, and plaintiff has seen and interacted with the children only during his parenting time. Enrollment of the children in the Howell Public Schools would not alter this arrangement in any way-defendant would still maintain primary physical custody, and plaintiff would still be free to exercise liberal and reasonable parenting time just as he had done before the change of school districts.
Pierron at 248-49.
Given the fact that a change of schools in Pierron would not have modified the established custodial environment (even though it would have required a change in parenting time), the burden of proof became a preponderance of the evidence, not clear and convincing evidence. Beyond the burden of proof—there was yet another difference in the analysis. The Court of Appeals in Pierron could held that a trial court must only consider relevant factors under of the best interest test and not all of the factors if the school choice will not result in a modification of the existing established custodial environment. In fact, the trial court should focus “narrowly” on the aspects of the best interest factors that actually relate to the school issue when the custodial environment will not be changed by the decision. For example, the “child’s reasonable preference,” which is one of the 12 best interests factors and generally examines the child’s preference with regard to parenting time or custody in general, becomes the child’s preference for one school district over another in a school choice case. On the other hand, factor (b) of the best interest test, which inquires into which parent supports continuing religious participation, does not directly apply to a choice-of-schools dispute.
The issue of school choice can be a thorny one. Often, parents compare test data or other information that appears to indicate school excellence. Parents, however, must realize that their child is truly unique—and one size does not fit all when it comes to education. Factors that should be considered might include:
1. athletic and art programs along with other extra-curricular programs;
2. quality of the school facilities and use of technology in the classroom;
3. diversity of the student body and teaching staff;
4. number of graduates who go on to college;
5. vocational programs;
6. special education programs;
7. languages offered;
8. theatre programs and facilities;
9. athletic facilities including pools and gender equity in the programs;
10. transportation and food service programs;
11. security issues and discipline policies;
13. teacher/student ratio;
14. budget issues;
15. teacher “contract issues” that may be divisive; and
16. school calendar and school day scheduling
If the court sets a hearing on school choice issue, parents are well-advised to consider retaining an educational expert who can evaluate the choices with regard to the particular child(ren).