Minnesota Divorce and Family Law Blog

Where the Children Should Go to School

When divorced or separated parents need to make a decision about where their child or children will attend school in the fall, it can turn into a legal dispute. Regardless of the custodial arrangement that the children live by, it is preferable if the parents can be in agreement about school enrollment. If the parents disagree, then the designation as to legal custody may be important. Parents with joint legal custody share the authority to make a decision about school enrollment. If each parent with joint legal custody has a different school arrangement in mind for the child, then the issue likely needs to be resolved by the family court or a parenting neutral.

Unfortunately, in many instances, the family court judge would rather not make a decision without the input of a parenting neutral, and there may not be time before the beginning of the school year for a parenting neutral to investigate the situation.

When a child's parents do not share joint legal custody, then there is less likely to be a legal issue regarding school choice. The parents' disagreement about the choice of school may defer to the decision of the parent with sole legal custody. But the school decision must be made in a manner that is consistent with the best interests of the child.

If the decision is whether to keep the child at the same school, or change the school the child attends, the child is likely to stay attending the same school unless the parents agree to a different school, or there is a compelling reason for the child to change schools over the objection of one of the parents.

What it Takes to Win an Award of Attorney's Fees

Under Minnesota law, a family court can make one party pay another party's attorney's fees in two ways. The two forms of fee awards are need-based awards and conduct-based awards.

Need-based attorney fee awards are made in cases in which one party cannot afford to pay their fees. In order for the court to rule that Party A should pay Party B's fees, it is necessary for the court to find that Party B cannot afford the fees, but also that Party B has incurred fees in good faith, and that Party A has the means to pay the fees. That last requirement is often the problematic one. Frankly, for every case in which that is the situation (Party B can't afford fees, and Party A can), there are about twenty cases in which one party can't afford their fees, but neither can the other party.

Conduct-based attorney fee awards are not dependent on the parties' respective ability to pay fees. If a party is found by the family court to be acting in bad faith, and unreasonably contributing to the length and/or expense of the proceeding, the family court can make that party pay the fees of the other party. It should be noted, however, that family court judges do not frequently make this type of award. It can be frustrating, because there are many spouses who are convinced, beyond a doubt, that the other spouse is acting in bad faith, and unreasonably contributing to the length and expense of the proceeding. For the court to reach that conclusion is a very different, and less common, occurrence. Moreover, since the court need not expressly find that the unreasonable party can afford to pay the fee award, the prevailing party may have difficulty collecting on the award.

Another very important consideration is this: if you are seeking an award of attorney's fees, in most cases you will incur additional fees to attempt to get the award of fees. In most cases, the court will not award the fees, and you are left not only with no fee award, but with an attorney bill higher than it otherwise would have been.