Joint Custody and School Decisions

Many parents end up with custody agreements or orders in which the parents are named joint managing conservators. Conservatorship is the legal term for how decisions are made for a child. The conservatorship decisions allocated by a court outlined in Section 153.132 of the Texas Family Code are:

1. 1. the right to designate the primary residence of the child;
   2. the right to consent to medical, dental, and surgical treatment involving invasive procedures;
   3. the right to consent to psychiatric and psychological treatment;
   4. the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
   5. the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
   6. the right to consent to marriage and to enlistment in the armed forces of the United States;
   7. the right to make decisions concerning the child’s education;
   8. the right to the services and earnings of the child;
   9. except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government; and
   10. the right to:
       1. apply for a passport for the child;
       2. renew the child’s passport; and
       3. maintain possession of the child’s passport.

But even if the parents are joint managing conservators, this does not necessarily mean that the Court will award equal possession time. Tex. Fam. Code Section 153.135. Furthermore, the court may allocate the rights and duties outlined in Section 153.132 between the parents and order that the decisions for the child will be made either jointly, independently, or exclusively by one parent (Tex. Fam. Code Section 153.134), which begs the question, who gets to pick the school the child attends?

Which Conservator Gets to Pick the School for the Child?

A common misconception is that the parent who has the right to designate the child’s primary residence (e.g., who has “custody”), also gets to pick the child’s school. However, two courts of appeals have stated that the right to determine the primary residence is not linked with the right to enroll the child in school. The Third Court of Appeals (Austin) has stated that the right to determine the primary residence and make educational decisions are two separate rights. The power to choose the primary residence does not “equate to the power to decide what public school shall attend.” In re Cole, No. 03-14-00458-CV, 2014 WL 3893005, at #3 (Tex. App.—Austin Aug. 8, 2014, no pet.) (mem. Op.). The Ninth Court of Appeals (Beaumont) has recently concurred with In re Cole, writing “this relationship between the two rights does not necessarily lead to the assumption that the conservator granted the exclusive right to designate the primary residence should, in turn, have the exclusive right to enroll the child in school.” In re C.E.H., No. 09-19-00120-CV, at *19 (Tex. App. Sep. 24, 2020). However, the Second Court of Appeals (Fort Worth) has written, “We question the reasoning in Cole,” although the Court did not go so far as to completely repudiate Cole. In re J.W., No. 02-18-00419-CV, 2019 WL 2223216, at *3 (Tex. App.—Fort Worth May 23, 2019, Orig. proceeding) (mem. op.).

So, What Does This Mean for Who Picks the School?

The practitioner or the client should not assume that the right to make schooling decisions necessarily flows to the parent who has the right to determine the primary residence. At least two courts of appeals believe, seemingly, that a conservator may have the right to determine the child’s primary residence. Therefore, the child’s school decision may need to be made jointly or made by the other conservator. Thus, in any contested case or agreed order, it must be clear which parent has the right to decide the child’s school.

If deciding which school your child attends is a topic of discussion between you and the other conservator, it is vital that you hire an attorney who is knowledgeable and mindful of the issue.