Yes, the Court has very broad discretion in this area. For instance, in a relevant case, Marriage of Fini, it was said that “the facts and circumstances of the parties in each family law case are different, which is why these cases are equitable proceedings in which the Court must have the ability to exercise discretion to achieve fairness and equity. It is for this reason that the author of the child support statute, later in the same legislative session in which it was adopted, ushered in another bill making clear [64 Cal. App. 4th 471] ‘that it was not the intention of the Legislature to eliminate family law judges’ traditional discretionary authority to adjust child support orders in individual cases where fairness requires it.'” In re Marriage of Fini (1994) 26 Cal. App. 4th 1033, 1043 [31 Cal. Rptr. 2d 749].
Under Judicial Council of California §201.55 – Discretionary Add-Ons, a court may order additional child support costs related to the children’s education or other special needs pursuant to Fam C §4062(b)(1), which states that a court shall order additional support for the costs related to the education or other special needs of the children. Under California child support law, private education is considered a discretionary add-on rather than mandatory, meaning that family court judges must consider whether sharing the cost of private education is appropriate on a case-by-case basis.
Courts are granted authority and discretion to increase child support and require non-custodial parents to pay for private school tuition. However, this mandate may be for a portion of tuition. If that is the case, the custodial parent may be required to foot the bill for the difference. The fact that the parent who is required to pay child support disagrees that their child should attend private school is not the deciding factor. Rather, it is a factor to be considered by the Court when it weighs and balances relevant information.
Courts will determine if child support should be increased to include the costs associated with private school attendance by balancing the following factors:
- The specific educational needs of the child;
- The income(s) of both parents;
- Agreements relevant to the child’s education upon divorce or separation;
- The child’s previous education history;
- The religious background of the child and/or family; and
- The extent to which the non-custodial parent was involved in the child’s education prior to the divorce or separation.
- In the wake of a divorce, children are expected to maintain the standard of living to which they were accustomed before their parents separated. If a child attended private school before the divorce or separation, a court will likely find that child support should, at least in part, cover the cost(s) associated with attendance.
Before deciding whether to mandate that one or both parents pay for the cost of the private tuition for the child, the Court will consider the best interest of the child standard, which may include one or more of the following considerations:
- Does the non-custodial parent have the ability to pay for the private school costs, and for how long;
- Was the child attending private school before the divorce;
- If the school is religious, is attending the private school important to maintaining the parents’ religious beliefs;
- Are there any less expensive schools in the area that can meet the child’s needs adequately;
- What was the length of the marriage;
- What are the incomes and debts of the parents;
- Did the parents attend private school;
- Does the child have special needs that can only be met by a private school education;
- What is the level of involvement by the non-custodial parent in the child’s education;
- Are there other children in the family who already attend private school; and
- Is there a visitation order in place?
But what if I don’t want to?
The fact that the parent required to pay child support does not agree that their child should attend private school is not the deciding factor. Instead, it is only a factor to be considered by the Court when it weighs and balances relevant information.
In that case, the Court must assess the basic monthly Guideline child support obligation as a preliminary consideration. Basic guideline child support is calculated by a computer program called the DissoMaster. Once basic child support is established, the Court can address a party’s request for the payment of private school tuition as a discretionary child support add-on. It will look to whether the supporting party can afford a tuition payment in addition to the total support obligation. See Judicial Council of California §201.55 – Discretionary Add-Ons.
Further, if the Court grants the order awarding child support and you refuse to pay it, after ten days of being late, the Court shall immediately order disbursement of funds from the account established pursuant to subdivision solely to provide the amount of child support then in arrears. Funds so disbursed shall be used exclusively for the support, maintenance, and education of the child or children subject to the child support order. Child Support Security Act., 1991 Bill Text CA S.B. 1068
But what if I cant afford it?
If the Court determines that the add-on educational expense should be paid under Fam C §4062, the payment must be paid in proportion to their net disposable income. (Fam C §4061 (c) –(d). Thus, the Court will look to your ability to pay when determining whether to award the add-on of educational expenses to the child support order. Arguably the most important factor is the ability to pay, looking at each party’s net income. The costs of private school are generally split evenly between the parties, but either may argue for a different allocation.
So what now?
If you would like more information to your specific rights on whether or not you are required to pay private school tuition for your children during or after a divorce in California, contact Aloha Divorce to schedule a consultation.
