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In re Cole – Who Holds the Power to Determine the Child’s School?

The right to establish primary residence of a child has generally been perceived to have an inherent control over certain aspects of the right to make educational decisions. The Texas Court of Appeals out of Austin, however, recently handed down an interesting ruling regarding the connection between these two rights, thereby changing how many will interpret the meaning behind the right to designate primary residence.

The Third Court of Appeals’ held that these two rights were exclusive of each other, stating that the right to designate primary residence does not automatically contain the right to determine what public school the child attends. The Court’s holding appears to be a departure from the other appellate courts’ (along with many family law attorneys) line of thinking.

For example, a different Texas Court of Appeals held in 2002 that the Family Code was deliberate in its usage of the term, ‘primary residence.’ The Eighth Court of Appeals found that a child will often spend time in both households of the parents, but one parent must retain the power to pick the residence for the child’s public school enrollment. Thus, the Court seemingly appeared to express its belief that the right to designate primary residence held inseparable ties to the right to make educational decisions.

The Third Court of Appeals has now disagreed and ruled that the Eighth Court of Appeals could not or should not have intended to grant the person with the power of the right to designate the primary residence the sole ability to determine what public school the child must attend. Elaborating on their interpretation, the Court highlighted that while one parent conservator may be granted the exclusive right to designate the child’s primary residence, both parent conservators may share the right to make decisions concerning the child’s education.

Put simply, there must be some collaboration between the parents when exercising the right to make educational decisions for the child, if this right is subject to the agreement of the parties in their parenting plan. This requirement that the parents collaborate effectively prevents the parent with the right to designate the primary residence from having the authority to pick what public school the child attends.

However, the person with the right to designate the primary residence may still identify a potential public school for the child – but this will not guarantee the child’s attendance at that school as that depends on how the right to make educational decisions is specified in the order.

In review, the holding of the Third Court of Appeals puts an apparent restraint on the authority held by the parent with the exclusive right to determine the primary residence. Because of this ruling, it may become necessary to articulate if the right to designate the primary residence incorporates the right to determine the child’s public school. Without this articulation, the courts will hold the final say on the extent of the right to designate the primary residence.

If your case involves child custody issues, contact the Dallas child custody lawyers at McClure Law Group at 214.692.8200.