Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, May 28, 2009

Non-Custodial Parent Does Not Have The Right To Make Special Education Decisions

NYSCOAseal Fuentes v. Board of Education, ___N.Y.3d ___(April 30, 20009), is an important Education and Family law decision coming out of the New York Court of Appeals. The Court answers a certified question put to it by the Second Circuit and concludes that  under New York Law, the non-custodial parent of a child does not retain decision-making authority pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions. The Court reasoned:

It is now well settled in the Appellate Division that, absent specific provisions in a separation agreement, custody order, or divorce decree, the custodial parent has sole decision-making authority with respect to practically all aspects of the child's upbringing (see e.g., Fedash v Neilsen, 211 AD2d 1003 [3d Dept 1995]; De Luca v De Luca, 202 AD2d 580 [2d Dept 1994]; De Beer v De Beer, 162 AD2d 165 [1st Dept 1990]; Stevenot v Stevenot, 133 AD2d 820 [2d Dept 1987]; Bliss v Ach, 86 AD2d 575 [1st Dept 1982]).

In appropriate circumstances, courts routinely include specific provisions in custody orders addressing decision-making authority between the parents (see e.g., Wideman v Wideman, 38 AD3d 1381 [4th Dept 2007]; Chamberlain v Chamberlain, 24 AD3d 589 [2d Dept 2005]; Davis v Davis, 240 AD2d 928 [3d Dept 1997]). Plaintiff asks this Court to recognize an implied right of non-custodial parents to exercise decision-making authority with respect to their child's education notwithstanding the custody order's silence on this subject. We decline to do so and emphasize the importance of parties determining these issues at the time of separation or divorce.

Finally, we note the distinction between a non-custodial parent's right to "participate" in a child's education and the right to "control" educational decisions. Generally, there is nothing which prevents a non-custodial parent (even one without any decision making authority) from requesting information about, keeping apprised of, or otherwise remaining interested in the child's educational progress. Such parental involvement is to be encouraged. However, unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child's education, a non-custodial parent has no [*4]right to "control" such decisions. This authority properly belongs to the custodial parent.

Mitchell H. Rubinstein

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