Child Custody, School & The Court

Children should continue to attend whatever school they previously attended until the parents agree, or a Court orders otherwise.

by Honorable Anne Kass. Ann Kass is a District Judge in the Second Judicial District State of New Mexico

The last half of August is always a nightmare in family court. That is when we see case after case in which divorced parents are at war about school.

In one case the father had enrolled the children in school in Los Alamos, while the mother had enrolled them in Albuquerque.

In another case the mother appeared at a local school with a Texas Court Order which said she had custody. At the same time the father appeared with a New Mexico Court Order that said he had custody. Mom demanded the children be removed from the Albuquerque school. Dad insisted they remain there.

In another case the children were disenrolled from the private school they had attended for years because one parent refused to pay their share of the tuition.

In another case, the child, who had just turned 6 and was to begin first grade, was not enrolled anywhere because the parents couldn't agree. 

In another case a stepmother went to school to change a child's class schedule. A scene resulted.

In many cases, the parent who had the children for a summer visit, refused to return the children at the end of summer, and those children are not enrolled in any school. Try to remember when you were a child. Remember the 1st-day-of-School-Jitters? Imagine adding to those Jitters the embarrassment of having your parents, behaving like anything but grown-ups, at your school, squabbling. Or imagine how much worse your 1st-Day-of-School-Jitters would have been if your 1st Day of School happened two or three days after everyone else's. Imagine the humiliation of walking into your classes late and being called to the special attention of all your classmates.

Amazingly, a significant number of parents, at a time when they should be particularly sensitive and supportive of their children, behave in such shockingly inappropriate ways.

There are some basic legal guidelines;

1. Children should continue to attend whatever school they previously attended until the parents agree, or a Court orders otherwise. (Consistency is important to children.)

2. If a child has not previously been enrolled in school, neither parent should enroll the child in school without the other parent's agreement. (We can only hope parents will anticipate this issue more than a week or two before school is to begin.)

3. The children should generally be enrolled in the school district of the parent with whom the children spend most of their time.

4. Failure to return children at the end of a visitation period may be a violation of New Mexico's Custodial Interference Law. This is a fourth degree felony. (If you have such a problem, contact the District Attorney's office.)

5. Court orders from other states need to be "domesticated" (officially recognized) by a New Mexico Court before they are enforceable in New Mexico.

These are general principles. There are few hard and fast laws. We rely primarily on parents' common sense, and the hope that their love for their children will prevent last minute tugs of war. When common sense and love fail, children spend what should be their 1st day of school in the Courthouse, and parents spend hundreds, sometimes thousands, of their hard-earned dollars paying lawyers to ask judges to decide where their children will go to school.

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