In a Texas Divorce Which Parent Gets to Decide Where the Kids Go to School?
Let’s assume that, pursuant to a Texas divorce decree, parent A is “primary” (that is, parent A has the exclusive right to designate the primary residence of the child), but, as has been commonly done in the past, the order says that parent A and parent B must make educational decisions for the child by joint agreement. One summer, parent A decides to relocate to a new school district and informs parent B that the child will start attending the new school in the fall. Question: in this scenario does parent B have any say as to whether the child will change schools?
OLD ANSWER: NO…
Until recently, any knowledgeable Texas divorce attorney would have answered, no, the primary parent’s choice of residence dictates school attendance.
On the one hand, viewing the right to determine residence as containing the right to determine school seems logical. Since school is often determined by residence, it follows that the primary parent’s choice of residence should determine the school. There has always been a bit of problem, however. Texas Family Code 153.133 also requires the parenting plan to address the right to make educational decisions for the child. So the question really becomes, how can the rights to designate primary residence and to make educational decisions be reconciled when it comes to determining where the child will attend school?
NEW ANSWER: In the greater Austin area -> Yes.
Outside of greater Austin -> Maybe, we’ll see.
The Third Court of Appeals in Austin shed some new light on this question in 2014, with In re Cole. The Cole case stands for the novel proposition that the right to designate primary residence is separate from the right to make educational decisions, and that the right to determine school ultimately is an educational decision. Which means that while the primary parent has the exclusive right to determine residence, they don’t necessarily have the exclusive right to determine school. Under the reasoning of Cole, in the example above, since educational decisions must be made by joint agreement, parent B would maintain the right to consent or not consent to changing the child’s school.
As this ruling went against the grain of the generally accepted view, many believed the Texas legislature would take some action to address this issue during the last session. However, Cole remains good law as of today and is binding on divorces pending in the Third Court of Appeals’ jurisdiction. It remains to be seen whether the reasoning of Cole will be more fully embraced by subsequent Texas courts or whether the Legislature eventually gets involved.
In the meantime, parents who anticipate that school selection may be a contested issue in the future would be wise to specify in their decree how this decision will be made.