School Choice: A Focus on the Child as a Learner

Determining where a child will attend school for separated or divorced parents can be overwhelming. When parents share joint legal custody, they are required to make educational decisions together as co-parents. However, as family law professionals, we often see parties engage in high conflict, unilateral decision-making, and ulterior motives when it comes to deciding school choice related issues for their minor children. Rather than staying child-centered in these decisions, parents are often focused much more on their own needs in the process.  How then should we as family law professionals better approach school choice related issues? This article, co-authored with Amanda Crain and Katie Lammers of Heimerl & Lammers LLC, discusses the faults in the current approach to school choice, how this impacts children, and considers when and how school choice should be addressed when parents cannot or will not agree.

Leveraging school choice as a proxy issue

Parents often attempt to leverage a school choice dispute as a proxy issue to achieve another outcome, such as a modification to custody labels or a parenting time schedule. For example, Mother is in a new relationship and wants to move 50 miles away to the opposite side of the Twin Cities Metro Area and enroll the minor child in a successful west suburban school.  Mother assumes (unrealistically) that Father will still drive the minor child back and forth to the new school during weekday parenting time or that Father will simply allow the child to reside with her during the week, especially since Mother is giving the child an opportunity to attend one of the top tiered schools in Minnesota. She thinks to herself, “Why wouldn’t he simply agree to that proposal? It’s in our child’s best interest!” Father then brings a motion in court to enforce the minor child’s current school enrollment, a school with less accreditation, but a school in which the child has close friends, classmates, and earns decent grades. Which parent is right?  How does one decide?  

In reality, school choice related motions are much less about the minor child’s best interests, than they are disguises for motions to modify custody labels, parenting time schedules, or child support. The underlying custody and parenting time arrangement then becomes a hot button issue, especially when a school choice determination requires a reworking of a parenting time schedule or other logistical arrangements such as travel, cost, and coordinating other extra-curricular activities. Even more concerning is the increase in litigation surrounding school choice issues during the summer months, when parents expect a judicial officer to make a quick decision based on limited information.

It is important for families and practitioners to remember that a child’s successful transition to, and experience at a new school surpasses “parental convenience.”  In Novak v. Novak, parties who shared legal custody disagreed about whether their child should be home schooled.[i] The district court granted the father's motion to enroll the child in a public school or in a private school similar to the one the child previously attended.[ii]  The Appellate Court reversed and remanded because the district court based its decision on the parent's competing custodial rights rather than the child's best interests.[iii] The best interest of the child should be the primary consideration of the court or parenting consultant when making the decision as to where a child should attend school.

A child's best interests are defined as “all relevant factors,” including those listed in Minn. Stat. § 518.17. A typical analysis of the best interest factors assumes that the determination being made by the district court is an award of custody.[iv]  In most school choice cases, custody has already been resolved and is not at issue. Thus, the Minnesota Appellate Courts have not required that the courts produce a detailed analysis of all best interest factors, when addressing a child’s best interest for reasons other than an award of custody.  Therefore, as long as the district court considers all of the “relevant factors” as to which school is in the best interest of the child, the decision would likely be upheld on appeal.  The district court's consideration of additional factors not listed in the statute has not constituted reversible error.[v] 

So, which factors are the “relevant factors” that a court should consider when making a determination as to which school is in the child’s best interest?  Minn. Stat. § 518.17 is the obvious starting place, but the analysis can, and should, go deeper. A child’s individual learning style, level of involvement for each parent, availability of programming, daily schedule of the child and parents, statistical data, gifted and talented and special needs programs, and transportation considerations are just a few of the additional components of a thorough examination of the best school option for a child. 

Traditionally, Courts relied on the submissions made by litigants in order to make a decision on school choice. Sometimes, a guardian ad litem or a custody evaluator was available to provide additional information and feedback as to the child’s individual needs, but the process was largely based upon limited information focusing on the available statistics of a particular school and its ranking.  Quite often, a judge or referee is called upon to make this weighty decision in a short period of time. 

A recent trend has developed in the Minnesota Courts to personalize and streamline school choice litigation. 

Deciding school placement early in the dissolution process

Fleming Education Group (FEG), has emerged in Minnesota to address school-setting issues early in the process. Specializing in education-setting evaluations, FEG has seen that when the education setting evaluation is determined early in the separation or dissolution process, children can start thriving in school sooner. Further, attendance at a “best-fit” school can help attenuate other cognitive-environmental stressors that invariably accompany family or marital trauma. Simply put – when children land well, they tend to learn well and live well. FEG has completed over four-hundred fifty (450) school choice dispute cases since its inception in 2015, determining school placements through an evidence-based and student-centered process that uncovers who the child is as a learner. FEG’s process is rooted in the philosophy of meeting children’s diverse learning needs and promoting their healthy cognitive and social development.  Underlying this philosophy is the guiding principle that children have a better chance to thrive in safe, stable, robust learning environments that are equipped to meet a child’s specific learning profile. Adhering to this ‘child-as-learner-first’ process ensures that school placements are successful and aligned with the Minnesota best interest factors under Minn. Stat § 518.17.

Often times, where a child attends school is either a “given” pursuant to the status quo or a term left for the joint legal custodians to determine on their own, often towards the end of the dissolution or post-decree.  Sometimes the school choice issue comes to light when one or both parents has experienced a life change, often a new relationship, that drives a geographic relocation. FEG  believes that the decision of where a child attends school should be at the forefront of the child custody and best interest conversation and should be addressed early in the dissolution process.  Rather than having the school district determination stem from the custody and parenting time arrangements, the school placement should actively be considered and decided firmly early in the dissolution matter. Hopefully, this would ensure a “buy-in” from both parents as to the school district, potentially reduce transition and conflict down the road, and give the child an additional sense of stability in a time of conflict.  In the event the parents can’t agree, a school choice evaluation can be a valuable tool in analyzing the individual child’s needs and best interest.

Exploring the child as a learner and the impacts of stress

A thoughtful, child-centered education setting evaluation will always seek to gain a deep sense of how a child learns. This might include a review of grades and transcripts; collateral conversations with current teachers, counselors and therapists; or a recommendation that a child undergo a comprehensive neuropsychological education assessment. These steps – and many others – go a long way in determining how a child’s cognitive and social predisposition may combine to empower the child to grapple with new subject matter and to develop self-agency (pre-reflective awareness or implicit sense of how I show up in the world). In separation or divorce cases where children are in their formative years, this approach is critical to ensure that social skills and basic motor functions remain on-track and unimpeded. Learning to walk and talk are some key examples of these formative skills. A child’s personality and emotional development are also greatly impacted during these years. Basic likes and dislikes, such as sports, arts, hobbies, etc., have their beginnings in this important period, and so it is vital that school choice decisions take into consideration a child’s learning profile and trajectory.

We are acutely mindful of the impact that parental conflict and stress tends to have on children. Of course, children are resilient; they can be inspired to cultivate new friendships in new settings, and, in time, can learn to thrive in new academic surrounds. Credible research substantiates that, in many instances, a child’s capacity to leverage her/his resilience and grit is directly correlated to the degree and frequency of ‘variable stressors’ they are required to navigate in their lives. While the body of research is varied on whether children of family trauma, such as separation or divorce, matriculate to colleges and universities and achieve at the same levels as children from intact families, there is generally broad agreement that the potential for increased levels of stress, distressed parent-child relationships and low academic standing is elevated for children experiencing the throes of separation, family-marital discord, and divorce. In fact, some studies support the notion that individuals from bi-nuclear, separated or divorced families are not as likely to go to college, in comparison to those with parents that have not divorced, or have an intact family. Additionally, Wallerstein & Lewis report that in addition to a lower likelihood of attending college, children that have experienced family trauma were considerably less likely to complete a four-year degree.[vi]

One positive among students of divorced families is the ability to be resilient. Children and teens who have experienced divorce or family trauma, who have positive attachments and relationships with their parent(s), and whose parents have found a path to collaboration show advanced signs of coping strategies in dealing with stress, more so than an individual raised in an intact family.[vii] Still, though many teens are quick in adapting to the changes of a divorce or family trauma, even their possessing resiliency, infer that their parents’ separation or divorce is one of the most difficult experiences of their lives.[viii]

Findings from the South Wales Family Study suggest that the quality of relations between parents not only affects children's long-term emotional and behavioral development but also affects their long-term academic achievement. "The study shows what many have long suspected - family factors exert a real influence on children's emotional and behavioral problems, as well as their academic achievement," said Dr. Gordon Harold, of the University's School of Psychology, the Director of the study. "In particular, children living in a family environment marked by frequent, intense, and poorly resolved conflicts between parents are at greater risk for deficits in academic achievement than children living in more positive family environments", he said.[ix]

It is critical to illuminate the literal, physiological impacts that “cognitive-environmental” stress could have on a child’s capacity to learn, interact socially, exhibit empathy, express emotions, and be attuned to social conventions. The effects of stress on a child’s processing might include interference with her/his capacity to encode memory and the ability to retrieve information. So, if we extrapolate on what the implications for learning are for children who may be legitimately experiencing residual effects from moderate to significant parental conflict and cognitive-environmental stress, it becomes prudent to pause and consider the implications of selecting an appropriate, “best-fit” school setting. Children experiencing a school setting placement change without ample transition time and/or support will experience some degree of academic and/or social-emotional distress. When families are considering a new school choice option, it is vital that children have considerable time to preview and digest any potential school transition.


We know that children need both of their parents’ love and support to help them through the process of divorce. The research affirms that children thrive academically and socially in school when parents and guardians agree on—and support—their child’s educational pathway. Additionally, when there are minimal disruptions to the educational pathway (i.e. transferring in and out of schools or school districts), a child has a better chance to develop a love for learning and a strong self-esteem.

In dissolution and custody cases, unless the evidence indicates otherwise, it is vital that parents and guardians foster the spirit of creativity, openness, and cooperation to ensure their child’s best interests are considered – this includes decisions about religious upbringing and training; participation in sports programs and organized activities, music lessons, medical, dental and mental health care, and a whole host of other daily life events.  Inevitably, circumstances change as one or both parents recalibrate and rebuild their lives. Given that there are so many variables that can impact a child’s learning, it is imperative for the school choice issue (decision) to be addressed at the forefront of child custody matters. This approach will help to ensure that children thrive in school and in life beyond their school years.

[i] See Novak v. Novak, 446 N.W.2d 422, 423 (Minn. Ct. App.1989)

[ii] Id.

[iii] Id. at 424

[iv] See In re Paternity of B.J.H., 573 N.W.2d 99, 102 (Minn. Ct. App. 1998)

[v] See generally id. at 102-03. 

[vi] Wallerstein, J. S., & Lewis, J. M., The unexpected legacy of divorce. Report of a 25-year study. Psychoanalytic Psychol., 21, 353-370. (2004)

[vii] McIntyre, A., Heron, R. L., McIntyre, M. D., Burton, S. J., & Engler, J. N. College students from families of divorce: Keys to their resilience. J. of Applied Dev. Psychol., 24, 17-31. (2003)

[viii] Hetherington, E.M. and Stanley-Hagan, M. The Adjustment of Children with Divorced Parents: A Risk and Resiliency Perspective. J. of Child Psychol. and Psychiatry, 40, 129-140. (1999)

[ix] Dr. Gordon Harold, Cardiff University. Parental Conflict Can Affect School Performance, ScienceDaily, 9. (2005)