One of the most hotly contested issues involving legal custody is private school education. Paying for private school is usually expensive and is in addition to child support for the parent without physical custody. A legal custodian can almost always argue that a better education is in the children’s best interest in support of the decision to place the children in private school. However, the best interest of the children is not the standard applied by the court because there are other factors to be considered.
Typically, when the children are enrolled in private school the costs are paid by the parents based on their relative incomes. For example, if the children live primarily with their mother and she earns $2,000 per month (gross income) and their father earns $8,000 per month, then the mother will pay 20% of the private school tuition costs and the father will pay 80% -- (based on their 80-20 relative monthly gross incomes) in addition to child support.
In this situation, where the father is trying to support his own household, pay child support to his former wife (and sometimes alimony as well), the father will often object to also paying private school tuition even if the children will likely receive a better education in a private school. Instead of deciding this issue based solely on the best interests of the children, in Maryland (and a number of other states including Colorado and Louisiana) the court looks at a number of factors.
The leading case on this issue in Maryland is Witt vs. Ristaino, 701 A.2d 1227 (Md. Ct. Spec. App. 1997), in which Maryland’s highest court stated the factors a judge must consider when deciding whether to require parents to pay for private school for their children.
First, courts should consider the child's educational history, such as the number of years the child has been in attendance at that particular school. While we give no minimum of time to consider, it seems evident that a child who has attended a private school for a number of years may have a more compelling interest in remaining in that school than a child who has yet to begin his or her education at the private institution. Further, as part of the history factor, courts should evaluate the child's need for stability and continuity during the difficult time of the parents' separation and divorce.
Second, courts should look at the child's performance while in the private school. It is often in a child's best interest to remain in a school in which she or he has been successful academically.
Third, courts should consider family history. That is, a court should look at whether the family has a tradition of attending a particular school or whether there are other family members currently attending the school. Part of this consideration can include a review of the family's religious background and its importance to the family unit if the private school is a religiously-oriented institution.