My ex & I share joint custody and equal parenting time. Five years ago, I moved 35 miles away and have commuted the distance since to allow our daughter to finish elementary. She will be starting high school and we disagree on school choice. My school choice is one that is 9 miles from him, and 26 miles from me; thus, I am still willing to bear the burden of commute. His school choice is 5 miles from his house and would be double the drive-time for me compared to my school choice, and not possible with my work schedule. She does not currently have friends who will be attending either school. We have attempted mediation and a hearing, but the judge dismissed the case since we were not asking for a change in parenting time or legal decision making. If I decide to move forward with asking for sole decision making, I am hoping it would be awarded since he has shown he is not willing to compromise. However, I have heard that an attempt to obtain sole decision making could harm the petitioner's case. What may a judge decide in this case?
Joint custody is great, if it works, that is. If it can't then someone has to petition for sole custody. Courts are not going to get involved as to where a child goes to school. They are only going to get involved on a visitation or custody case. You could move for sole custody and show you tried to work out an agreement but failed.
Courts decide custody based on what is in "best interest of the child" which is a vague legal term. Whatever they think is best for the child they will do. If the child is living with one parent for a significant period of time and there are no problems with that arraignment most courts would just give that parent custody. However, there are more determining factors that come into play outside of what I just said. Speak with a custody lawyer either from Avvo, or your local bar association or the internet, or ask your friends and see whether they know someone that they could recommend to you.
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There is almost no chance you're awarded sole legal decision making simply because you two disagree. It is exceedingly common for parents to disagree about all types of major legal decisions. It's also not unusual for a parent's disagreement to seem stubborn, vindictive, selfish, or irrational to the other parent.
When parents with joint legal decision-making cannot agree and the decree does not specify the 'tiebreaker,' you may have to ask the court to rule on the limited issue of school enrollment.
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To be awarded sole legal decision making you need to overcome a large burden of proof. It is highly unlikely you will be awarded sole legal decision making based on a disagreement. If mediation has not worked, you may want to consider requesting a parenting coordinator, or requesting the judge to rule on the limited issue of schooling. I suggest you meet with an attorney in your area to discuss your issues further.
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