;Young elementary school kids boarding a yellow school bus.

We wrote last year on a Colorado Court of Appeals Thomas decision which held that courts should make a major decision, including school choice, when parents with joint decision-making are unable to agree. A recent unpublished decision from the appellate court holds that the choice can even include private school, and such fees may be included in the basic Colorado child support obligation.

In Vogl, the parties agreed at divorce in 2015 that the mother would be the child’s primary residential parent, and they would have joint decision-making on all major issues, including education.

Three years later, the father sought to modify parenting and child support. The trial court declined to decide whether the child should continue in private school through the first year of high school. Both parties appealed.

Who Chooses Private School in a Divorce?

The mother cited a 1985 case, which itself was based upon a now-obsolete provision of the law, to assert that she, as the “custodial parent”, should choose the child’s school. In view of the Thomas decision which rejected that very argument, the appellate court here rejected the notion that being the primary parent somehow overrode a joint decision-making provision in a parenting plan. See our prior blog post for a more complete discussion of why the “custodial” parent no longer has the power to choose schools.

However, while the trial court was correct that the mother should not choose, the court itself should have intervened in the decision rather than simply sending the parents away for the impossible task of trying to agree themselves (after all, if they could do that, they would not have spent more than $100K litigating post-decree parenting issues):

“Nonetheless, we conclude, in light of Thomas, that the district court erred in finding that it did not have a role to play in resolving the choice of school impasse… Although we recognize that Thomas was decided after the district court’s ruling, the court does have the authority to be the tiebreaker when the parents are at an impasse.”

Vogl, ¶ 21.

In view of Thomas, this aspect of the appellate decision was not groundbreaking. However, where the court went next when addressing whether private school costs are included in child support was more interesting.

Private School Fees Part of Child Support

The appellate court found that the court erred by concluding that it could not include the child’s private school tuition costs when calculating child support. This, despite the fact that the child was already attending private school.

Private school students in uniformPrivate school students in uniform

Colorado’s child support statute provides that the child support obligation includes:

“Any expenses for attending any special or private elementary or secondary schools to meet the particular educational needs of the child or public school mandatory school fees.”

C.R.S. 14-10-115(11)(a)(I) (Emphasis added)

The statute does not define what it means by the “particular educational needs of the child”, and the trial court applied a restrictive interpretation to it, finding that it only applied when a child had special needs conditions which specialized schooling was necessary to address. The parties’ child, on the other hand, was “incredibly bright” and destined for great things, but if one of the parents selected private school, the trial court held it would not allow a credit on the child support worksheet for the school fees.

The Court of Appeals rejected that narrow interpretation of “particular educational needs”:

“Contrary to the district court’s ruling, the “particular educational needs” of the child are not to be construed narrowly as only encompassing learning disabilities or special educational needs. Instead, child support may include an amount to allow a child to attend a private school if circumstances warrant.”

Vogl, ¶ 26.

Moreover, the fact that the child was currently attending a private school was something the court may consider when determining whether continued enrollment met the child’s particular needs. ¶ 26.

Back in 1995, before the child support statute changed to explicitly mention private school, the Court of Appeals held that it was error for a trial court to outright reject private school, based upon the lack of evidence of disability, as the family law judge should have considered the fact that the children had already been in private school. Payan.

The takeaway? Judges are conservative, with a little “c”, and tend to preserve the status quo mutually selected by the parties absent good reason not to. So when a child is already in private school, the parent wishing to change that would typically have to convince the court that the parties were wrong when they decided to utilize private school. Similarly, if a child has been in the public school system, a parent wishing to change that to private school will likely have a tough time doing it.

Private School for High Asset Divorce?

It should be noted that this couple was not your typical middle-class couple, and a family law judge is unlikely to order divorced parents to share private school fees if they cannot afford it. The parties’ total legal fees litigating their post-decree parenting & child support exceeded $100K, and that does not even count the appeal. And their combined incomes were just over $29,000/mo.

So we’re talking about high income parents who had a high asset divorce. While $360K/yr combined income hardly puts this couple in the extremely wealthy category, that averages $180K per household, or more than double the $75K median household income in Colorado per the 2020 census. So while private school is an issue for more affluent parents, it does not often arise in Colorado divorce cases.

Finally, this was not the only issue considered in the Vogl appeal – we wrote a separate blog post on the other significant portion of it, where the court upheld the trial court considering the father’s discounted legal fees as a financial resource when ordering him to pay $30K of the mother’s legal fees.

FAQ on Private School & Child Support

What Happens When Parents Disagree on School Choice After Divorce?

In a Colorado custody case, if parents with joint decision-making do not agree on which school the children should attend, ultimately the family law judge will make the decision.

Does Private School Count for Child Support?

Colorado’s child support law provides that the expenses for “private elementary or secondary schools to meet the particular educational needs of the child” are included in child support. And the particular educational needs may be for a child with special needs, or a prodigy who needs greater challenges than public school

What are Extraordinary Expenses for Child Support?

A child’s extraordinary expenses are shared between parents in a Colorado child custody case, and may include unreimbursed medical expenses, educational fees, and even extracurricular activity expenses.

Award-Winning Colorado High Asset Divorce Lawyer

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