Attorneys Dedicated to Family Law
Welcome to attorneys dedicated to Family Law, the podcast where our experienced attorneys at Curran Moher Weis guide you through the complexities of family law. Whether you are facing a divorce, custody dispute, or financial matters. Our dedicated team is here to provide strategic insight and practical advice. Each episode, one of our attorneys will dive into key legal topics. And help you navigate your unique situation with confidence.
Attorneys Dedicated to Family Law
EP #2: Choosing Schools: Navigating Custody and Child Support Implications with Carl "CJ" Schoenherr, Jr., Esq.
School selection during separation stands as one of family law's most emotionally charged battlegrounds—and for good reason. Beyond educational quality, your choice of school can dramatically reshape custody arrangements and financial obligations for years to come.
Whether you're contemplating separation or already navigating co-parenting challenges, this episode provides essential guidance for approaching school decisions in ways that prioritize your child's needs while protecting your parental rights. Subscribe for more family law insights that help you navigate life's most challenging transitions with confidence.
So, for example, in northern Virginia, if parents live more than, let's say, 10 miles apart, that could be a 30-minute drive, depending on where that drive is, and so to get a child to school Monday through Friday can be very, very challenging if you don't live in the same school district. Asking for 50-50 custody in a case while you live 30 minutes away from the child's school can present a real uphill battle and an obstacle.
Speaker 2:Welcome to Attorneys Dedicated to Family Law, the podcast where our experienced attorneys at Curran Moher Weiss guide you through the complexities of family law, whether you're facing a divorce, custody dispute or financial matters. Our dedicated team is here to provide strategic insight and practical advice. Each episode, one of our attorneys will dive into key legal topics and help you navigate your unique situation with confidence. Let's get started.
Speaker 3:Welcome back listeners and viewers. Charlie McDermott, producer of the show, and in today's episode we have host CJ. That's Carl CJ Schoener Jr and he's a seasoned family law attorney with Kern Mower Weiss, and since joining the firm in 2017, cj has dedicated his practice exclusively to family law, handling everything from divorce and custody to child and spousal support, equitable distribution and post-divorce enforcement. He brings valuable insight from his early work as a guardian ad litem in Northern Virginia, where he advocated for children in abuse, neglect and custody cases. Cj is known for his clear communication, practical advice and passionate advocacy qualities that earned him recognition as Virginia Rising Star in 2018 and 2019. Whether in court or at the negotiation table, cj is deeply committed to ensuring his clients feel heard, informed and empowered throughout their family law journey. Cj, thanks for carving out time to be with us and let's get things started here. Thank you, cj. Thanks for carving out time to be with us and let's get things started here.
Speaker 1:Thank you.
Speaker 3:Yeah, yeah. So today, and just a caveat, and this is what you're going to speak to, is all about Virginia law, right?
Speaker 1:That's right. From state to state, a lot of these laws can vary, but our expertise is in Virginia law and that's what I'm going to speak about today.
Speaker 3:OK, ok, yeah, yeah, because it not. I mean the attorney world. You all know that, but you know the average, as I often say, the average Charlie may not, so. So, if you're in another state, find a great podcast like this one and make sure. Or, better yet, I guess, cj, maybe they should talk to an attorney even better, right, that's right, that's always the advice.
Speaker 3:So today's episode we're going to talk about choosing schools, navigating custody and child support implications, and let's just start CJ with explain why is school selection such a hot button issue in custody cases?
Speaker 1:Sure.
Speaker 1:Well, the more optimistic answer is to say that every parent is very concerned about their child's education.
Speaker 1:Right, it's one of the things that you consider first and foremost when selecting a home and when you decide where you're going to, where you are going to raise your family.
Speaker 1:But beyond just the benefit to the children, school selection can be a form where parties can have a greater degree of control over what happens in the custody schedule if they are successful in winning the school placement issue. So, for example, in northern Virginia, if parents live more than, let's say, 10 miles apart, that could be a 30-minute drive, depending on where that drive is, and so to get a child to school Monday through Friday can be very, very challenging if you don't live in the same school district. Asking for 50-50 custody in a case while you live 30 minutes away from the child's school can present a real uphill battle and an obstacle. So beyond just wanting to say, hey look, I want the best possible education for my kids, there are logistical concerns here that can give a party an upper hand and sort of control moving forward in custody cases, and so that's why school selection from the outset is very important to consider.
Speaker 3:So, CJ, how often do you see this come up in your practice?
Speaker 1:You know I'd say the majority of my clients raise concerns about school selection issues.
Speaker 1:You know everyone has thoughts about where their child should go to school, but the vast majority of them don't end up actually going and being litigated because we're able to work something out where we realize, hey look, it just makes more sense for one parent or the other to be able to get the kid to school. But I would say about one third, maybe a quarter to a third of my clients will actually have an issue that goes to court on an issue of school selection or something like that. And you know when those, when those matters come up, it's because there are, it's usually because there are those other concerns about whether or not we can fit the custody schedule that my client wants, that my client wants, whether or not the school selection will fit the class schedule that my client wants, or maybe a medical issue or something bigger than just saying you know, school A and school B are comparable, but one might be, slightly better than the other, yeah, well, yeah, I could see that really being an issue for a lot of reasons.
Speaker 3:you know, and you make a good point in, in Northern Virginia you don't have to live very far away to deal with a lot of traffic.
Speaker 1:No, absolutely not. Yeah, that's. That's a big issue around here.
Speaker 3:So there there's legal custody and there's physical custody, right? Can you explain the difference between the two?
Speaker 1:Yes, absolutely. One of, actually, the first questions that I like to talk about with my clients when they come in for custody is this distinction between legal and physical, because it's commonly misunderstood. Legal custody is about decision-making for your child, right? So what are the important life decisions that parents get to make? Most of the time, what we're talking about are medical decisions and educational decisions like school placement. So, for example, if you have a child who has a medical need and the question is should we go with a medical treatment like a medication, or should we try to change diet? Should we wait a little longer to see if this is going to work out? Those sort of decisions need to be made by the parents, and so that's a legal custody decision. School selection is another one where, again, this is a decision that the parents have to make, and if you have joint legal custody, then that means that parents have to make that decision together.
Speaker 1:The other side of this coin is physical custody, and physical custody is simply what schedule are the parents going to follow in terms of when will each parent have the child? So it could be a 50-50 physical custody schedule where the parties exchange the child every Friday, and so it'd be one week with parent A, one week with parent B. An alternative might be something like every other weekend schedule, and so parent A has the child Monday through Friday, parent B has a child Friday through Sunday, every other week, and so both of those would be examples of physical custody schedules. But it's just another word for what is the schedule that the child will be in parent A or parent B's custody for physical custody?
Speaker 3:Okay, okay, makes sense. So if both parents have joint legal custody, then who gets to choose the school?
Speaker 1:That's a great question too, and I think it's a really important question for parents to consider, because it's not so much my opinion about what you can do but how you should do it. That is gets people in their most, in the most trouble, at least around here. And the reality is that a lot of these local schools they have regulations for what to do in a situation like what you described. So, for example, we're located in Fairfax, fairfax County's public schools. Their regulations say that the party who has more custodial days on school nights, that party is the enrolling parent. And so if there's a joint legal custody dispute over school selection and you're in Fairfax County Public Schools, the party who has more custodial nights on days that are school nights, they would get to make that decision under the local regulations.
Speaker 1:But in the context of a case where you have a custody order that says you have joint legal custody, there's another sort of level to this. The court has ultimate authority over. Well, the court has ordered the parties to utilize joint legal custody to come to that decision. So even though party A might have more custodial days under the regulations, they would be within their rights to say I'm sending the child to the public school in my school district. The court's going to say well, you're subject to our rule, and our rule is that under joint legal custody, you have to make this decision with the other parent. Now it can play out in a lot of different ways when you actually get into court, because it can depend on the judge, it can depend on what circumstances led to you actually making that decision, the timeline.
Speaker 1:But what I usually recommend to parents in this situation is, first and foremost, you have to have a good faith discussion with the other side. So if you've got joint legal custody, the first thing you want to think about is have I made an effort to resolve this with the other parent? And that usually takes the form of an email or a text message, something in writing so you can prove it. So you write an email and make a super polite one and you say I would like to enroll the child at this school and here are all my reasons for why. And then you sit back and you listen to their answer and you have a good faith discussion.
Speaker 1:You don't dismiss whatever they're saying out of hand. You actually look into the issues and you try to reach a resolution. But if you can't, then the next step, in my opinion, should be to file a motion with the courts and have the court decide that issue. Taking a unilateral action, saying I don't care what you think I'm going to do it anyway, can end up getting you in a lot more trouble than just filing the motion, because, while you might be successful right, you might also give the court the impression that you are what's the right word. You're taking advantage of the power that you have, and one of the factors that the court has to consider in all custody situations is your ability to work with and to cooperate with the other side to resolve disputes. So even if you have the power under the local regulations to do something, how you do it can be very, very important.
Speaker 3:Good, good, all right. So disputes you kind of got into that a little bit. So I'm curious what are some of the most common reasons parents disagree over school choice?
Speaker 1:So the first one, I think, is what I mentioned earlier, which is location. I think logistically it can be very challenging to have a 50-50 custody schedule when you're in school districts that aren't neighboring, or maybe you're, you know, maybe you live in Fairfax and your ex-spouse or your current spouse lives in Loudoun or something like that. So location is usually one of the issues. The second issue that I see come up quite a bit is a preference for private school, right? So I mean, we're not always comparing public schools to public schools.
Speaker 1:Sometimes a parent says, look, I think I want to give my kid the best chance, I think a private school gives my child the best chance. And so they may advocate for sending a child to a certain private school that could provide additional benefits to the child. Maybe it's a school that has an athletic program that the child excels in. Maybe it's just a matter of wanting the child to be around children that are, you know, of a certain class or something like that. That'll give them an edge. The parent thinks it will give them an edge later on in life. And then other times maybe it's a preference for a religious organization, so maybe a preference to send a child to a Catholic school or to some other denomination. So those are the most common ones that come up in my line of work.
Speaker 3:Okay. So when it comes in the private schools, have you seen cases where a parent's desire for a private school was denied?
Speaker 1:Yeah, absolutely.
Speaker 1:You know, most recently I was actually involved in a case where the other side was advocating for a change from a Fairfax County public school to a private school located in Alexandria.
Speaker 1:Now there were a lot of other issues in this custody case and so I can't say that the whole case hinged on the school issue. But my client wanted the child to stay in her current school and we were able to put on evidence. We put on evidence from from her therapist and from the school to show that the child was doing really well. We brought in the child's report cards and standardized test scores that showed that the child was steadily making improvement year over year. And so while there was, like I said, a lot of other issues in this case, on that particular issue we did prevail and the court said look, this is a school that's done a lot for this child. The child had gotten an IEP, so an individualized education plan. That was something that the court took into consideration. And so, under all those circumstances, the court said this isn't a situation where we think it's in the best interest for the child to go to a private school, and the court ordered the child to remain in public school.
Speaker 3:Yeah, interesting. You know you would think on the surface private school is always going to trump the public school. But you make a good point, or I guess the court does.
Speaker 1:Yeah, right, I think the the court does right in this situation comes down to is it's always about what's in the best interest of this child and in children are the same, and so being able to sort of look down at the actual at all the data and say what in particular about this child, is this child gonna benefit from going to a public school or private school? And in this particular circumstance you know we were we were successful in advocating for our client's position, which is that the public school was doing a great job and we do have the benefit around here of being in some of the best school districts you know in the state of the country, so it doesn't hurt to go to have that on your side as well.
Speaker 3:Awesome, awesome. So let's dig a little deeper here. School choice and child support. Can one parent be forced to pay for private school, even if they don't agree with the decision?
Speaker 1:Yes, they can.
Speaker 3:Yeah.
Speaker 1:So under our child support statute we have the ability for the court to deviate from. So, to back up, we have guidelines which say, okay, this is what the presumptive amount of child support ought to be. But then we also have this section of the code that allows for parties to deviate from those guidelines, and a need to pay for private school is one of those factors, one of the things that the court could deviate for. And so what the court has held and the Court of Appeals has held is that, yes, the court can make a parent who does not want to send their kid to private school chip in for the cost of private school if they can prove that it's one necessary and two, they have the ability to pay for it.
Speaker 1:And when I talk about what is necessary, what the court looks at is the availability of satisfactory public schools, child's prior attendance at private school, special emotional or physical needs of the child, religious training and a family tradition. And so you know, to kind of put that into more layman's terms, we talk about the availability of satisfactory public schools. I mean, we're talking about real big differences in school achievement, right? You know, going to looking at a school that maybe is underfunded and lacks the achievement scores, versus you know a private school that's graduating at 99% and sending all their kids to, to you know, high level schools. And then I think the more important factor for the court to consider or, in my experience, what has been the most effective in arguing this point has been the special emotional or physical needs of the child. So, for example, we have cases all the time where a child comes in with a learning disability that you know, for whatever reasons, doesn't seem to be being met at the public school.
Speaker 1:Or maybe the opposite Maybe they're at a private school and it's not being met because that school doesn't offer an individualized education plan, which is only a requirement for public schools. In either case, what we're going to look at is what is it specific about this child that makes it so important for this child to be in school A or school B, and then we advocate accordingly.
Speaker 3:Okay, okay. So then how about when a child switches to a more expensive school? How does child support come into into play there?
Speaker 1:well, if they're going from one private school to another private school, you might have a material change in circumstances. That's the buzzword that you'll hear. Um, if the pro, if the cost goes up by what we would call a material amount which there's no right bright line rule here um, but if it goes up by a significant amount, you can say, okay, there's been a material change in circumstances, the cost has gone up and so we need to come back to court to modify it. Now that might be from the parent who's paying for private school, because maybe their prior order says they're going to pay a percentage of the cost of tuition. Well, now, okay, that was fine, judge, when the cost was $10,000 a year, but now it's 20, and when the cost was $10,000 a year, but now it's 20, and I can't afford that.
Speaker 1:So my ability to pay one of those factors that the court has to consider has changed.
Speaker 1:So it could be a reduction in support or not a reduction in support, but it could be a motion to modify by the person who's paying for the private school that doesn't want to pay for the private school. Or it could be from the other parent, the one who wants the other parent to pay for the private school, and it could be from the other parent, the one who wants the other parent to pay for the private school, and it could just be hey look, this private school didn't work for XYZ reasons. This new one's going to work for these other reasons and it's going to cost more. And so then they're asking for the court to increase the amount of support that the other party is paying. And if we're moving from public sector to private sector, it's again it's going to be that material change in circumstances standard that we have previously, and we're going to be looking at those same factors that we were looking at before whether or not it's necessary and whether or not the party has the ability to pay.
Speaker 3:Okay, okay. So how about then? You know parents, they're communicating and all of that, but they just can't agree. You know what's the next step there?
Speaker 1:Well, I'll tell you, what happens most of the time is that when they can't agree, parties' communication breaks down. Usually there's a few nasty emails and texts and I am here to tell everybody that's in this podcast please, please, please, don't send that text. Don't send that email. Don't send that text. Don't send that email, right? I mean, one of the things I sort of have told clients in the past, or counseled clients in the past, is, if you have strong feelings about an issue, write your email in Word first, so that you don't send it by accident out of anger. Right, write it down in Word. And if you come back to it an hour later and you're a little bit more calm and you feel the same way about it, okay, then maybe you consider sending that email. But if you take that hour a lot of times, that you're going to realize that probably a better way to communicate what you're trying to communicate. So, assuming that you've done that and you've made an attempt then to reach out to the other side to say, hey, look, we haven't been able to resolve this.
Speaker 1:What's the next step? Well, the next step is to file your motion to modify. Now there's a little bit of leeway here in terms of what you could be advocating for. Some judges will let you come in and say look, I just want to address one issue, I only want to touch the issue of school selection. And other judges will say well, what you're really asking me to do is modify legal custody, and once you bring a motion or a petition to modify custody, the cat's out of the bag and really everything becomes an issue. You can certainly work with the other side and I would recommend that when you talk to an attorney, that you try your best to have him or her explain to the other attorney that this is the scope of what we're trying to do and limit those issues to only what is really being fought over. But ultimately that's what you're doing. You file an emotion, you're asking the court we need you to change legal custody, and it could be as simple as saying we just want to change it with regard to who selects school.
Speaker 3:So then, what factors will a judge consider when deciding what school is in the child's best interest?
Speaker 1:Right. So the court is bound by the Virginia Code 20-124.3 to consider a list of factors that the court, that they're supposed to be, to determine what's in the best interest of the child. But what I have found to be the most amongst those factors, what I have found to be the most effective sort of in arguing for a certain school placement, is the first office is consistency and stability for the child. So, for example, if you've been in public school A for seven years, right, and now all of a sudden a parent wants to change the child the school to school B, they're going to have a very hard time overcoming that obstacle. They're going to have to prove that the child's not doing well in school A, that the school is, for whatever reason, not meeting those needs and it's not something outside of the school causing the decline in grades. And there's this difficulty that we often have in custody cases of proving causality. Right, it's not enough to say, hey, the child's struggling, it's also struggling because of X, y or Z and, as you can imagine, in these types of cases it's usually not one thing, it's usually a lot of different things. So being able to show a court, hey look, we've got a history of stability, of attending this school and the child being comfortable in that setting. That goes a long way, in my opinion. The second factor I think the court probably considers most important is going to be the medical or maybe even behavioral needs of a child. So, especially when we start dealing with some like some of the more severe medical issues, then it becomes OK, is this placement going to be effective for this child? Right, do we need to consider an alternative school? Or, you know, I mean, in cases of severe behavioral issues, boarding schools and things like that. So if we've got a medical issue, if we've got something that the court just can't overlook because you've got a therapist or you've got a doctor coming in and saying this is going to be beneficial for a child, that tends to be very persuasive.
Speaker 1:And if we're just looking at two public schools and we don't really have any major red flags, there are a number of sort of data points that we can kind of gather through, whether it's through gathering data from government websites or from sending experts to the school to evaluate things like achievement scores. You know, what percentage of kids are graduating, what percentage are going on to college, what percentage of kids are passing standardized tests? What percentage of teachers have education degrees or master's degrees? What programs does the public schools offer? I mean, everyone thinks that all the schools offer the same, but they actually do have differentiation. There are some public schools that will offer, you know, higher level, gifted and talented programs and things of that sort, and you know, each of these things can be a reason for a court to say, okay, I could see how this school would be beneficial for this child. And there are experts out there that you can hire to advocate on behalf of a client's position, to sort of take all of those data points and summarize them into a school selection survey and then be able to say, okay, come into court and say this is what we believe would be the best for the child, based on an observation of the child in the classroom, the child's needs and then the data points that we're able to collect through the course of the research that we've done. So those things are all important.
Speaker 1:And then I think there's some weight given to religious affiliation or family tradition, not to say that a court's going to favor a Catholic school over something else, but if this is a family that has demonstrated a history of, you know of value, placing value in a certain religious denomination, then the court could give some weight to the fact that this was a school.
Speaker 1:Usually this would happen for a child who's been in a school already. Right, they were in a Catholic school and then their parents were splitting up and parent A says well, I no longer want to pay for Catholic school, I'm going to send somewhere else or some other denomination of religion, and you know. So if there was that history of this sort of religious component, then the court could give some weight to that. And then, last but not least, I think that the court looks at the relationships that the child has built right, whether that's with his friends at school or teachers or even in the community. Right, because a lot of the times their extracurricular activities are going to be around the school, especially for older children. You know, teens, middle school, high school, they're playing on a sports team, it's a, it's a middle school team or a high school team. And so the friends that they have, the coaches that they have, it was all might be relationships that that child, or the court, ultimately ends up wanting to keep in place.
Speaker 3:Wow, wow, wow. This has been great. So, final thoughts, cj, and I'm going to put you on the spot here. You ready, yeah. So what's your biggest piece of advice for parents trying to navigate school issues during a custody case?
Speaker 1:All right. So the first piece of advice I would say is stay involved right. Stay involved with your child's education and be able to demonstrate that. It doesn't mean you have to fire off an email every time you go to a parent-teacher conference or send 50 emails to your student's teacher. Know what they need, right.
Speaker 1:One of the things that stuck out in my mind in one of my cases that I had maybe a couple months ago was a parent was able to articulate where in their child's reading learning they were struggling. Right, they write their Ds and their Bs backwards, and I remember the court writing it down as the witness was testifying to it, because it demonstrated that this parent deeply understood where this child was struggling. And so, when that parent was advocating, saying, look, this is what we need to do to get this child the help that she needs academically, the court found the witness to be very credible. So stay involved right. Help your children with your homework, read to your children at night. Don't go overboard, don't over document it, but just do the little things.
Speaker 1:And then, from there, the next step, I think, is to communicate effectively. This goes back to what I was saying earlier. It's not so much what you can do, but how you do it, that's going to really make a difference. When you get to circuit court or to juvenile court or whatever court you're going to be in, you know. Send that email to the opposing party and make it a very concise, clear email where the goal of that email is to help your child right. It's not to score a point, it's not to create evidence, it's not to make a personal attack, it's I notice that this child needs this. How can we best help you and me as co-parents, how can we help this child to get that? So? Communicate effectively. Parents, how can we help this child to get that? So communicate effectively. And I think, last but not least, know why you want the child to go to the school that you want the child to go to right.
Speaker 1:I mean be honest with yourself, know this is a logistical issue. There are other ways that we can try to resolve those matters right. We can be creative with the schedule. We can be creative with transportation requirements. You don't have to go spend a ton of money litigating a school selection case if the issue is really about something else. So be honest with yourself, understand what it is that you really want to solve, what is the problem, and then get the data that you need to support that position.
Speaker 1:If this is about a child with a medical issue, make sure you've talked to the doctors. If this is a child that's struggling in schools, then make sure you have the standardized test scores so you can see what does that growth over time look like? What areas are they specifically struggling with? And then, what is the IEP or the individualized education plan accommodations that maybe you don't have or want to request? So understand what it is that you're actually advocating for and then get your data to support that. Those would be my biggest piece of advice to anybody trying to navigate this issue at home.
Speaker 3:Awesome, awesome. How about there any pitfalls you'd warn parents to avoid?
Speaker 1:Yeah, I think so.
Speaker 1:So I mean, I think the first one I talked about earlier is that that unilateral action Right, feeling like, oh, I have sole legal custody, or I have the more custodial days during the school year, so I'm just going to act, taking unilateral action can be viewed very negatively by the courts.
Speaker 1:The other thing that I would say can cause trouble is which goes back to sort of not understanding why you want the school that you're advocating for, if you are going to stand up in front of a judge and say school A is better than school B, but you don't know what the data is. I mean, more than one cross-examination has gone my way when I get to ask the other parent, all right, well, what was the last math unit about? What was the subject? And they didn't know. And so if these issues are really that important to you, you've got to be prepared to discuss them in an insightful way that demonstrates your ability to assess and meet your child's needs, because, at the end of the day, that's what the court is trying to assess. Do you have that ability to assess and meet your child's needs and what is in your child's best interest?
Speaker 3:Wow. Well, CJ, this was absolutely excellent and I know it's going to be so very, very helpful for your listeners. Thank you for being on the show once again and for sharing your intel, and this wraps up today's episode of Attorneys Dedicated to Family Law. We hope this conversation on school selection, issues in custody and child support cases give you valuable insights to navigate these complex decisions. If you found this episode helpful, be sure to subscribe, leave us a review and share it with anyone who might benefit. Have questions on a topic you'd like us to cover? Just reach out. We'd love to hear from you Again. Thanks for listening, CJ, thanks for being on the show, and we'll see you all next time.
Speaker 1:Thank you for having me Take care.
Speaker 2:That wraps up this episode of Attorneys Dedicated to Family Law. We hope you found today's discussion insightful. If you have questions or need personalized legal guidance, visit us at CurrenMohurtcom. Be sure to subscribe so you don't miss our next episode, where another of our experienced attorneys will tackle an important family law issue. Thanks for listening. Until next time. We're here to help you protect what matters most.