When a married couple makes the decision to end the marriage there are typically a number of issues that must be settled as part of the divorce. If there are minor children of the marriage, custody of the children is one of those issues. In most divorces, one parent is granted physical custody of the children, meaning that the children will live with that parent and the non-custodial parent will be granted visitation. Aside from the practical issue of where the children live after the divorce, there are also important decisions relating to the children that have to be made, such as where the children will attend school. Who gets to decide where the kids go to school and other similar issues?
In New York, as is the case in most states now, custody is really divided into two parts - physical custody and legal custody. Both parts can then be shared or sole. For example, you might be awarded sole physical custody of your child but then share legal custody with the child's other parent. Physical custody refers to where the child will live. Legal custody determines who will make major decisions regarding the child relating to things such as education, religion and medical treatment. Courts tend to be hesitant to grant joint physical custody of a child because it often is not practical and requires a tremendous amount of cooperation between the parents. Joint legal custody, however, is common.
If you have sole legal custody of your child you will have the legal right to decide where your child attends school. Conversely, if the other parent has sole legal custody he or she will have the right to make that decision. If you share legal custody you both have a legal right to decide where your child attends school. Clearly, this only works if the parents are willing to communicate and reach a decision that is agreeable to both parents. If you and your ex-spouse are unable to reach a decision you will need to return to court. The court will then appoint an expert to review the situation and assist the court to determine what is in the best interest of the child. Ultimately, the court will make the final decision; however, the court will rely heavily on the expert's evaluation of the facts and circumstances.
If you share joint custody with your ex-spouse and are concerned that the two of your will not be able to reach an agreement regarding your child's education, contact the experienced family law attorneys at SIMON & GILMAN, LLP right away to discuss your options.