Joint Custody and School Decision in Arizona

The Arizona Court of Appeals issued a ruling on the issue of the standard of proof the court must apply to determining school placement in Arizona when the parents do not agree, if a child can be precluded from attending a private religious school solely because one parent objects on religious grounds and if a parent can be required to pay for tuition for a private religious school as a part of the child support obligation in the case of Jordan v The Honorable John Rea.

Paolla Jordan and Gerald Romine were divorced in 2005 and are the parents of two minor children. In the dissolution decree, the court approved their parenting plan and awarded joint legal custody of the children with Jordan receiving child support from Romine. Both children attended a private religious school with monthly tuition costs since kindergarten.

Romine filed a petition to modify child support with the Superior Court in 2007 and Jordan requested a hearing on the matter. The court held an evidentiary hearing. Romine submitted an updated Affidavit of Financial Information contending he did not believe it was economically feasible for the children to continue attending private school.

Jordan argued they previously agreed the children would either be home schooled or placed in private school and requested the court include the tuition costs in his child support payments. The court noted the parties entered into a settlement agreement, but there was no mention of the parents’ agreement regarding private school tuition costs in the judge’s child support order.

The court ordered Romine to pay the private school tuition costs for the children based on the fact the children always attended private school and neither parent may modify the choice of schooling without the consent of the other parent or a court order.

Romine appealed the decision to the Arizona Court of Appeals and subsequently filed a petition with the family court to enforce the parenting plan. In his petition, Romine argued the Superior Court’s order violated the terms of the parenting plan and violated his constitutional right to freedom of religion in his choice of his children’s religious education.

Jordan asserted the issue regarding which school the children attend had already been decided by the Superior Court. The family court issued an order reducing Romine’s child support obligations and requiring Jordan to choose a different school for the children at the end of their current term.

Jordan filed a special action with the Arizona Court of Appeals asserting the family court’s order was an abuse of discretion because the judge’s order violated the constitutional provision separating church and state.

When the appellate court received the Special Action Petition, the Court of Appeals ordered both parties to file simultaneous briefs addressing whether the trial judge had jurisdiction to issue its order, since it addressed the same issue on which the superior court had previously ruled.


Joint Custody and School Choice in Arizona | The Ruling

Because the matter was a special action, the court was required to decide the sole issue of the trial court’s jurisdiction to issue it’s order. Special actions cannot be used as a substitute for an appeal and are only granted when the issue impacts a constitutional right, cannot be remedied by a standard appeal, or has widespread impact.

Arizona policy states, “where an issue is one of first impression of a purely legal question, is of statewide importance, and is likely to arise again, special action jurisdiction may be warranted.” The court believed this case met all of those requirements, so they proceeded with the first issue presented.

The Arizona Court of Appeals began with the issue of whether the court may decline to consider one parent’s choice of private religious school based solely on the basis of the other parent objecting on religious grounds. The court examined the parties’ parenting plan to look for any pertinent terms the parents agreed upon that may assist in resolving the issue.

After reviewing the Parenting Plan, the trial court ruled the Parenting Plan did not give veto power to either parent regarding educational decisions, but because school is essentially both or neither parent’s time, one parent cannot deny religious instruction during his or her parenting time over the other parent’s objection.

The Court of Appeals found the trial court upheld the father’s objection to the children attending the religious school and directed the mother to choose another school at the end of the children’s semester. Jordan argued that this decision gave Romine veto power over her and the appellate court agreed.

They added that the parenting plan provides for mutual agreement for decisions regarding the children’s education and excluding religious schooling from potential options would negate her equal decision making authority. The Court of Appeals also noted the children had been attending private religious school prior to the dissolution and Romine did not object or bargain for veto power over school selection when negotiating the terms of the Parenting Plan. For these reasons, the appellate court decided the trial court erred by holding the court could preclude consideration of a private religious school solely because of the Constitution.

The court then turned to the question of the applicable standard to resolve the a dispute over school placement. Jordan argued a “best interests” standard should be used instead of focusing solely upon Romine’s objection. The Arizona Court of Appeals agreed with her.

Because there are no specific statutes enumerating the factors a court must consider regarding school placement, the Arizona Court of Appeals defaulted to the factors a judge must consider when issuing an initial child custody order. Those factors included the wishes of the children, the wishes of the children’s parents, the interaction and relationship of the children with the people at the school who may significantly affect the children’s best interests, and the children’s adjustment to their present school placement.

There were other factors that should be considered when circumstances warrant it, but were found to be irrelevant in this particular case. The appellate court remanded the decision to the trial court to consider these factors as a guide to making a judgment on the children’s best interests.

Finally, the court examined the issue of modifying child support, which they regarded as a separate issue. The Court of Appeals did not consider the obligation to pay child support for private religious school necessarily tied to the determination whether attending such a school is in the children’s best interests. As a result, the Arizona Court of Appeals indicated it intended the cost of private tuition would be included in the child support calculation, unless the judge found the parents lacked the financial ability to pay the private tuition.

The appellate court reviewed the judge’s decision on this issue under an abuse of discretion standard. The judge determined there was no agreement between the parents and concluded the court could not include the cost of private school tuition in the child support calculation.

The judge, therefore, did not include the cost of private school tuition in Romine’s monthly child support obligation. The appellate court found the judge’s reasoning to be flawed because the Arizona Child Support Guidelines do not require an agreement between the parents to include private school expenses in the calculation of child support.

The Arizona Court of Appeals noted the family court has the ability, notwithstanding a lack of agreement between the parents, to order the objecting parent to pay tuition, if the judge determines the tuition costs are reasonable. The determination regarding what expenses to include in the calculation of child support and what is reasonable are within the sound discretion of the trial court.

Romine argued the judge may not constitutionally require him to financially support a religion he does not support. The Arizona Court of Appeals rejected his argument by holding a parent is not being required to support a religious institution. Instead, the objecting parent is simply being required to pay child support to the other parent in support of their child’s education in a school determined by a judge to be in the child’s best interest.

This case may be cited in defense of enrolling a child in a private religious school despite the other parent’s religious beliefs. It also provides precedent supporting a judge’s authority to issue an order to allow a child to attend the private school based upon the best interests of the child. The court may also include the cost of private school expenses when calculating child support over the objection of the other parent.