Clarence and Mary were married
and had a child (Hardy). Then they got a divorce.
As part of the divorce
decree, Mary got physical custody
of Hardy, but they shared joint legal custody. This included a clause in the separation
agreement that "Both parents shall fully and equally participate in
the education of their child. Schools shall be selected jointly."
Mary wanted to enroll Hardy in
a Buddhist school. Clarence objected.
Mary tried to get Clarence
to at least visit the school, but he refused.
Mary went ahead and enrolled
Hardy in the school. Clarence went to court with a motion to enforce the
separation agreement.
Clarence argued that the separation
should be read to say that if he and Mary could not come to an agreement,
the courts should make the decision for them as a tie-breaker.
The Trial Court denied
Clarence's motion. Clarence appealed.
The Trial Court found the
separation agreement did not have a provision for what to do in case of
parent disagreement.
The Court found that under
Colorado law (14-10-130, 6 C.R.S.),
if there was no agreement to share education decisions, the custodial
parent (aka Mary) would get to choose. So, it makes sense for
the custodial parent to get to
chose in case of a tie.
Although mathematically
that means that that Clarence could never win a disagreement.
The Appellate Court reversed.
Mary appealed.
The Appellate Court found
that the separation agreement superceded 14-10-130 and therefore "the court must determine
the issue of choice of schools in case of parental deadlock."
The Colorado Supreme Court
reversed.
The Colorado Supreme Court
looked at that separation agreement and found that it contained no provisions
on how to resolve deadlocks. In essence, it was simply an 'agreement to
agree'.
If you remember Contract
Law, 'agreements to agree' are generally held to be unenforceable
because the courts cannot force parties to reach an agreement and cannot
grant a remedy.
Since the agreement is
unenforceable, the Court found that it should fall back on 14-10-130, which gives control to the custodial
parent.
The Court found that courts
are strangers to children, and as such are less equipped to make
decisions that the parents.
In addition, the Court
noted that in cases where a religious school is an option, the courts
may be constitutionally barred from making a decision due to 1st
Amendment concerns.
This case, which held that the
custodial parent has a presumptive right to make decisions for the child
over the objections of the non-custodial parent is a minority position.
Most jurisdictions would instead base their decision solely on the best
interests of the child, without
regards to which parent has custody.
