By Christian Lapham and Livia Paschke

In Northern Virginia, as in many other locations, highly ranked public schools often compete with a myriad of prestigious private schools. It is a challenge for many parents within an intact family to decide where to send their child or children to school. In a family with separated or divorced parents, particularly those experiencing trust issues and communication challenges, the issue of school placement can become a source of tremendous conflict that often amplifies differences in parenting views. Combine these differences with the multitude of school options, both public (neighborhood and magnet) and private, and the issue of school placement has never been more divisive. The consequences and stakes for families are high, resulting in, at best, difficult conversations, and, at worst, expensive litigation.

We have noticed an alarming rise in such school placement hearings in recent months. At the same time, it can be daunting to find sound objective reasons for one school over another, in what can be a very subjective dispute. In the public vs. public school debate, clarity can be found in the county regulations for student eligibility, the parties’ legal custodial arrangements, or state-wide rankings such as Niche or Great Schools which measure objective criteria like student test scores and student to teacher ratios. However, in the public vs. private school debate, the Court of Appeals has provided a guide when advocating for the public or private option in the case of Solomond v. Ball, 22 Va. App. 385 (1996).

Solomond v. Ball

While Solomond v. Ball is ostensibly a case relating to deviations in child support, its analysis of the reasons for private school tuition can and should be applied in the context of school placement.

As many family law practitioners are well aware, educational expenses are presumptively subsumed in any award of child support; however, courts may deviate from the support guidelines if they provide express justifications for doing so. In the Solomond case, the custodial parent sought to deviate from the child support guidelines based upon the private school expenses associated with a private Catholic School into which the parties’ children had been accepted. While the two children previously attended public school and were succeeding there, the trial court found that the children’s acceptance to the private school constituted a “material change,” justifying an increase in child support. Further, the court ruled that if, in the future, the children were to be accepted to another private school with a higher tuition, that acceptance would “constitute a sufficient change in circumstances to re-evaluate the percentage each parent would be required to contribute.”

Fast forward to one year later when the custodial parent again filed a motion to increase child support after one of the two children was accepted to another private school with a “considerably higher” price tag. The court modified the existing support order to include the educational expenses for this new school. In its analysis, the Court looked at two conditions when considering private educational expenses: the demonstrated need of the child for private school, and the parent’s ability to pay. Clarifying the “demonstrated need” element, the Court considered the following five factors:

1. the availability of satisfactory public schools
2. the child’s attendance at private schools prior to the separation of divorce
3. the child’s special emotional or physical needs
4. religious training
5. family traditions

Court Decision

The Court found these factors to be relevant and instructive not only to the child support deviation issue, but also to the issue of school placement. Noting that since the non-custodial parent did not object to enrollment at the new private school, the court did not need to decide the issue of school placement, but nonetheless explicitly held that the factors can and should be considered in this issue, and not just in the context of child support. Ultimately, however, the Court of Appeals found that the custodial parent showed no basis for further deviating from the statutory guidelines, as there was no demonstrated need under the five-factor test above for the child to transfer to the new school. Therefore, the Court reversed and reinstated the previous support amount for the children’s attendance at the first private school.

Conclusion

Although the Court in Solomond involved two private schools, its judgment in broadening this test to public/private school placement generally provides an excellent framework to argue for either the public or private school in dispute. In Northern Virginia in particular, factor one (“the availability of satisfactory public schools”) places home field advantage squarely in the hands of the public school, given the accolades of many of the local public schools. Further, as set forth in Solomond, the public school need not address the child or children’s needs as well as or better than the private school alternative; it must be simply “satisfactory.”  In Northern Virginia, many of these disputes hinge upon the third factor, the child’s special emotional or physical needs. For example, for a neurodivergent student, neuropsychological testing, and an informed opinion from an educational expert about how a particular school addresses these needs far better than the “satisfactory” public school option is critical. School placement disputes are both fact intensive and complex, but the law, at least in the context of public v. private school placement, is not complex.

If you have questions or need any assistance concerning guidance around divorce proceedings or child custody issues, please contact Christian Lapham at (703) 525-4000 or clapham@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.