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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 87557
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am in an out-of-court dispute with my ex over the school

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I am in an out-of-court dispute with my ex over the school that my 11-year-old daughter will attend this year. We have joint [50/50] legal and physical custody. Our daughter has attended a private school ($34K/yr) for dyslexia for 4 yrs. Her test scores have improved dramatically. In her public school IEP last year, she did not even qualify for special services, so the public schools would not provide her special services. My ex wants her to continue at the private school. I want her to be in the "least restrictive environment"... i.e., a heterogeneous environment where she can have a 504 plan if she needs it (special accommodations). The public school is a possibility. School starts in a couple weeks. My ex is stalling and has already enrolled our daughter at the private school w/o my consent. Can my ex just enroll her like that like, and even take her? How can I get our daughter out of that unnecessarily expensive school and into a more reasonable school that will address her needs, knowing that my ex will not cooperate? Time is short.
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry to hear about this situation. You state: "We have joint [50/50] legal and physical custody."

Even if this is true, one parent is usually named as the controlling custodian who has the ability to make decisions about education. Is any parent named as this person?

Or, do the two of you have to both agree on educational issues?

Or is the decree silent on the matter?

Finally, who pays who child support, if any?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

Hi,


 


The court was silent as to controlling custodian. At the moment, no one is paying child support, though in usual circumstances I would pay (I am only partially employed right now).


 


If you suggest going to court to resolve, do I risk having the court name one of us (e.g., my ex) as the controlling custodian?


 


Thanks,


Jeff

Expert:  Ely replied 1 year ago.
Thank you, B.

One parent usually becomes the custodian and the other parent becomes the "visiting" parent which is generally one day a week, every other weekend, and alternating holidays. The nuanced points of the custody can either be decided by the parties or the Court, if the parties cannot come to an agreement. Of course, that is the standard order of possession. That order can be modified if both parties agree or if the Court finds that it is an extraordinary situation.

I am guessing that here, you truly are 50/50. If so, then the decree may be silent (as you say) as to who can overrule whom in regards XXXXX XXXXX decisions. If so, then yes, I am afraid you may need to go back to Court with something called Motion for Clarification. This motion asks the Court to define the roles/duties of a parent in a confusing/unclear scenario such as this. The Court shall then render a supplemental order which will clarify how a decision for education is made, be it by one specific parent (and if so, which one), or, only by unanimous consent.

If you suggest going to court to resolve, do I risk having the court name one of us (e.g., my ex) as the controlling custodian?

No. The Judge should not modify the custody arrangement, but merely clarify the rights/duties of each parent. Now, either party can ask to become the custodian, but to modify the current custody order, that party would have to show that:

1) There has been a substantial change since the original custody order was rendered that necessitates the change, and
2) It is "in the best interest of the child."

In re Marriage of Carney, 598 P. 2d 36 - Cal: Supreme Court 1979.

I am assuming that this will not be possible. Also, the pleading to modify custody has to be filed SEPARATELY from the motion for clarification, and entails much more nuanced and prolonged litigation. So the other parent may not even wish to attempt.

I hope this helps and clarifies. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

Thanks so much!


 


Last year, there was a dispute as to the public school my younger daughter (not special education) would go to. It came down to the last minute, like this situation. I had attorneys at the time. They filed ex parte for an emergency order as to the school she would go to. I was thinking I would have to do something like that here... but as I understand it, that is not the route you would suggest, right? Since time is so short re school starting, should I go in ex parte w/ the Motion for Clarification? If so, when I file it, what do I do that the court will know it is an ex parte request to be acted on quickly, vs. a regular motion or OSC?


 


Thanks again!


 


Jeff

Expert:  Ely replied 1 year ago.
Friend,

Thanks so much!

No problem.

Last year, there was a dispute as to the public school my younger daughter (not special education) would go to. It came down to the last minute, like this situation. I had attorneys at the time. They filed ex parte for an emergency order as to the school she would go to. I was thinking I would have to do something like that here... but as I understand it, that is not the route you would suggest, right?

Right, because ex-parte emergency filings are for real serious emergencies where the child is in imminent danger of harm. This may not be it, and you may end up looking like you are wasting the court's time. It is better to approach this wish a more measured outlook.

Since time is so short re school starting, should I go in ex parte w/ the Motion for Clarification?

You can likely get a setting fairly quick. However, if you do decide to pursue an ex-parte motion, it would indeed be an ex-parte restraining order and an order setting hearing for the clarification.

If so, when I file it, what do I do that the court will know it is an ex parte request to be acted on quickly, vs. a regular motion or OSC?

One names it "ex-parte," and, asks the clerk to "walk it up to the court" to have it heard as soon as it is filed.

Thanks again!

You are very welcome. Good luck, and please don't forget to rate my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you – or, please REPLY to keep on chatting – I want you to be satisfied.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 87557
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 3 other Family Law Specialists are ready to help you
Expert:  Ely replied 1 year ago.
Thank you for your gratuity.

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