Divorce is never easy. But when you have children, some of the most contentious issues that will arise during your divorce will involve child custody and money. If you have a child in private school or intend to put your child in private school, it's a good idea to ensure that you and your co-parent are on the same page about your educational plans and your plans for paying for private school tuition. Standard custody orders don't typically include private school tuition as part of child support awards. Moreover, only a parent with legal custody can make educational decisions for your child. So, you'll want to discuss your expectations and hopes for private school and its tuition with an experienced Pennsylvania family law attorney as soon as you begin the process of divorce or separation.
Who Gets Custody?
The factors the court will consider when determining who gets custody are wide-ranging, looking at the best interests of the child.
(a) Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child's education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party's household.
(15) The mental and physical condition of a party or member of a party's household.
(16) Any other relevant factor.
23 Pa. Code § 5328(a) (2018).
1. Legal Custody
In Pennsylvania, “legal custody” gives a parent “the right to make major decisions on behalf of the child, including, but not limited to, medical decisions, religious and educational decisions.” Educational decisions will include where your child attends school. The court can give one parent legal custody or order joint legal custody, giving both of you the right to make major decisions on behalf of your child.
2. Physical Custody
In Pennsylvania, “physical custody” refers to each parent's time with their child. Courts may often split physical custody 50/50 or grant one parent custody during the week and the other on weekends and school holidays. The parent with primary physical custody is the parent who lives with the child most of the time. The court can grant primary physical custody to one parent but give joint legal custody to both of you.
3. Custody Order
Your custody order or parenting plan will set forth all the details of parenting exchanges, holidays, make-up visitation, physical and legal custody, and child support.
(b) Contents.--A parenting plan shall include the following:
(1) The schedule for personal care and control of the child, including parenting time, holidays and vacations.
(2) The education and religious involvement, if any, of the child.
(3) The health care of the child.
(4) Child-care arrangements.
(5) Transportation arrangements.
(6) A procedure by which proposed changes, disputes and alleged breaches of the custody order may be adjudicated or otherwise resolved through mediation, arbitration or other means.
(7) Any matter specified by the court.
(8) Any other matter that serves the best interest of the child.
23 Pa. Cons. Stat. Ann. § 5331(b). The custody order can also contain any other issues relevant to your divorce or custody case, including private school issues and child support. Your custody order will remain in place until a judge modifies it.
School Choice Issues
Sometimes parents find it difficult to decide jointly whether their child will attend a private school. You may find that you disagree because:
- You don't think it's the best environment
- You disagree on religious education
- You don't agree that it's the best academic choice
- Your child has struggled in the school in the past
- You don't like the academic or extracurricular offerings
Under the Pennsylvania Code, you can change your child's school through court order or custody agreement. See 24 Pa. Code § 11.11(a)(1) (2004). If you and your coparent share legal custody but can't agree on where your child will attend school, you have a couple of choices:
- See if your attorneys can mediate an agreement between the two of you
- Try formal mediation regarding the issue
- File a motion with the court asking the judge to decide the matter for the two of you
In making determinations regarding child custody, the court will look at the best interests of the child. The court can look at a wealth of information about your child and the available schools to decide. Concerning your child, the court will likely look at:
- Your child's grades
- Reports from teachers
- Your child's standardized test scores
- Entrance exam scores
- Any psychological reports
- Neuropsychological reports and educational evaluations
- Special education evaluations
- Thoughts from caregivers, coaches, and friends
In determining which school is in your child's best interests, the court may compare:
- School standardized test scores
- Educational opportunities available
- Graduation rates
- The availability of gifted programs
- The availability of music, foreign language, art, and physical education programs
- School crime or disciplinary rates
- The schools' academic curriculums
- The availability of technology in the schools
- Special education programs
- The distance to each school
- The mode of transportation to each school
- Whether the child will have friends and a community in each school
- Extracurricular activities
The court may also want to hear testimony from professionals, teachers, or coaches about the benefits of each school and your child's performance. The judge may also want to hear from both parents and your child about their preferences.
Pennsylvania Child Support & Private Schools
Surprisingly, if you have a child in private school, tuition won't automatically become part of your child custody order. You'll need to ask the court to include it as part of child support.
Pennsylvania Child Support Guidelines
Pennsylvania, like all states, has statutory guidelines that courts follow to determine the amount of child support the non-custodial parent should pay. There is a rebuttable presumption that the support guidelines are correct. However, the child's needs take priority after the parents' basic needs. According to the rules:
In most cases, […] a party's living expenses are not relevant in determining his or her support obligation. Rather, as the statute requires, the obligation is based on the reasonable needs of a dependent spouse or child and the reasonable ability of the obligor to pay. For example, in setting the amount of child support, it should be of no concern to the court that one obligor chooses to live in a one-room apartment and rely solely on public transportation, while another obligor, earning the same salary, chooses to live in a five-bedroom apartment and drive a new car. Both are obligated to give priority to the needs of their children. What they choose to do with their remaining income is not relevant to a support claim.
Each parent must contribute a reasonable share of the child's needs in proportion to their share of their combined incomes. While the custodial parent contributes through direct expenditures for food, clothing, shelter, transportation, and other reasonable costs, the noncustodial parent makes this contribution through support payments. See Pa. Code Rule 1910.16-1 (2022)(explanatory comments). Pennsylvania child support statutes and guidelines don't typically include private school tuition. However, the court may determine that private school tuition is a reasonable need or expense for your child in some cases.
Who Pays for My Child's Private School?
While the judge will typically follow Pennsylvania's statutory guidelines for child support, they also have leeway to deviate from the guidelines for special issues such as private school tuition. See 231 Pa. Code Rule 1910.16-5 (2022). The Pennsylvania Rules of Civil Procedure allow the judge to deviate from the child support guidelines if they determine it's appropriate based on:
(1) unusual needs and unusual fixed obligations;
(2) a party's other support obligations;
(3) other household income;
(4) the child's age;
(5) the parties' relative assets and liabilities;
(6) medical expenses not covered by insurance;
(7) the parties' and the child's standard of living;
(8) in a spousal support or alimony pendente lite case, the duration of the marriage from the date of marriage to the date of final separation; and
(9) other relevant and appropriate factors, including the child's best interest.
Id. at Rule 1910.16-5(b). To justify the deviation, the judge must include the following in the court record:
(i) the calculated basic child support, spousal support, or alimony pendente lite obligation;
(ii) the reason for the deviation;
(iii) the findings of fact justifying the deviation;
(iv) the deviation amount; and
(v) in a spousal support or an alimony pendente lite action, the obligation's duration.
Id. at Rule 1910.16-5(a). A court order regarding private school tuition will only cover school up through high school. Pennsylvania has eliminated child support for college students, including college tuition.
Court Considerations for Tuition Payments
The Pennsylvania legal code and court rules don't specifically mention private school tuition as part of child support. However, the court can order a parent or parents to pay private school tuition if they find it is in “the best interests of the child.” Ordering that the parents pay private school tuition is particularly likely if the parents' standard of living makes private school an appropriate educational option. However, the court will order payment of tuition, even if it requires a financial sacrifice by a parent or the parents if it minimizes disruption to the child's life and education.
The court may also consider other “relevant and appropriate factors,” including:
- If your child was already in private school before the divorce
- If they have siblings in private school
- If the parents and family established an expectation that the child would attend private school before the divorce or separation
- Whether you and your co-parent attended private school
- If your child's friends and peers attend private school
- The quality of the private school and the public school alternatives
While having the court decide for you may seem like the easiest route, particularly if you and your coparent have a contentious relationship, it can take longer and cost more money than the other options. School choice in divorce and custody disputes is a specialized area of family law. You need an experienced Pennsylvania family law attorney who is well versed in the custody issues surrounding private schools to help you find a way forward regarding your child's education.
Real World Examples
The Pennsylvania courts have also addressed private school tuition over the years. For example, in Pellish v. Gerhart, the mother asked for a modification of child support to include private school tuition. See 701 A.2d 594 (1997). The court granted it, and the father appealed.
In his appeal, the father argued that the Pennsylvania Supreme Court held in an earlier case, Curtis v. Kline, 542 Pa. 249 (1995), that the court couldn't order him to pay his child's private school tuition. In the alternative, he argued that the expense didn't qualify as a “reasonable need” for his son under Rule 1910.16-5 of the Pennsylvania Rules of Civil Procedure.
Curtis v. Kline
In Curtis v. Kline, the Pennsylvania Supreme Court took up the matter of whether a court or the legislature could require a parent to pay college tuition for their adult child. In that case, the court held that such a requirement would be unconstitutional and a violation of the equal protection clause of the Fourteenth Amendment. The Pellish court, however, distinguished the case from Curtis, noting that:
Curtis did not hold, or even suggest, that it was unconstitutional for the legislature to require divorced parents to provide for their minor child's private school education. […] Contrary to Father's claim, in this jurisdiction, the duty of parents to support a child who has reached the age of majority is different from the parental obligation with respect to a minor child. [C]ase law and statutory authority establish that divorced parents have a duty to provide for their minor child's private school education as long as such an education is a reasonable expense.
Thus, the court found that precedent didn't prohibit Pennsylvania courts from including private school tuition in child support orders.
Private School Tuition as a Reasonable Expense
In discussing whether private school tuition was a reasonable need to include in child support, the Pennsylvania Supreme court held that the lower court didn't err in ordering private school tuition payments. The court considered:
- The child's experience with bullying and harassment in public school
- The affluence and standard of living of the parents before the divorce
- The child's improved experience in a private school
Ultimately, the Pellish court upheld the lower court's determination that private school tuition was a reasonable expense to include in child support payments.
Hire an Experienced Pennsylvania Family Lawyer
If you're considering divorce or separation, you need the guidance of an experienced Pennsylvania family law attorney. Attorney Joseph Lento and the skilled team at the Lento Law Firm can help. They've been assisting families with divorce, custody, and support for many years in Pennsylvania. Find out how they can help you too. Call them at 888-535-3686 or contact them online to make an appointment.