Q: My son just finished his first year of middle school in a large public school and he really struggled on many levels. I discussed placement for next year with my ex and he ignored what I was saying. I applied for my son to attend a small local parochial school. My ex and I both went to parochial schools through high school. My ex refuses to allow our son to attend. Shortly after the divorce he became agnostic and now says Christianity is evil. I had to get a court order to continue taking our son to church several years ago.
I am not looking for financial assistance from him. I just want our son in a different environment next year. Can my ex stop me from sending him? He seems to think he can but I have custody — my ex only sees our son on Wednesdays and every other Friday night.
A: There is a difference between legal and physical custody. While you have primary physical custody, you probably have joint legal custody, meaning your ex has a right to have a say in where your son goes to school. First, double check the language from the last time you went back to court to get permission to take your son to church. It may be you were granted sole legal custody at that time or the right to make certain decisions. If that is the case, you have no issue.
Assuming you do have joint legal custody, you need to immediately file a complaint for modification and allege a change in circumstances that your son had a difficult year in school and needs a different environment but your ex does not agree. You also need to file a motion to permit you to enroll your in son the new school for September and ask the court for a speedy hearing on your motion. Even before the pandemic the courts were overworked and under staffed. That has only gotten worse in the last few years so getting a quick hearing is critical to changing schools in September. Depending on how hard your ex fights it, you may have trouble getting the court to enter an order this summer.
If you go to the motion hearing and your ex is advocating strongly for keeping your son in public school, ask the judge to have the probation department interview your son. This is a process similar to a Guardian Ad Litem investigation but is much quicker. An experienced social worker/probation officer will ask your son things like what he liked/disliked about the public school, where he wants to go to school in September and why. Then the probation officer will report their findings to the judge. The judge may make an order allowing the change of schools.
Where this is not your first rodeo, you should ask for sole decision-making authority for educational and religious purposes in your modification complaint so there is no next time.
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