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Novak v. Novak

Minnesota Court of Appeals
Dec 1, 1989
446 N.W.2d 422 (Minn. Ct. App. 1989)

Summary

holding that where joint custodians disagree on choice of school, the issue must be decided consistent with the child's best interests

Summary of this case from Levine v. Levine

Opinion

No. C6-89-922.

October 10, 1989. Review Denied December 1, 1989.

Appeal from the District Court, Blue Earth County, John Raymond Moonan, J.

Dale Blanshan, Brainerd, for appellant.

Gary Remine, Owatonna, for respondent.

Heard, considered and decided by CRIPPEN, P.J., and NORTON and LOMMEN, JJ.

Acting as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 2.


OPINION


Appellant Ellen Boertje contends the trial court erred in prohibiting her from providing education at home for the eight year old son of the parties. Deciding that appellant had to cooperate on the education decision, the trial court granted respondent's motion to require enrollment of the child in the public schools, or alternatively in a private school such as the religious school attended by the child since 1986. We remand for a determination of the child's best interests.

FACTS

The parties were married in 1979 and separated three years later. Consistent with a dissolution stipulation, the child was placed in appellant's physical custody but in the legal custody of both parents.

During the summer of 1988, appellant reached the conclusion she would educate the child in her home. Respondent moved to reverse this decision, contending it was made without his input and that the interests of the child would best be served by enrollment in the public school system. He expressed beliefs that appellant was not qualified to provide the child with the best education available, that it was important for the child to learn socialization skills outside of a single religious discipline, and that teachers in the public school system were "far and away" more qualified to provide education for the child. Respondent also stated his wishes that the child be permitted the extracurricular activities and other options offered in a public school. Appellant filed a statement indicating her study of the home schooling option and her preparation to lawfully provide for this education. She submitted studies on the achievements of children educated at home; in addition, one document reported that children are socialized better by parental example than through peer contact, and that home schooled children score well on self-concept testing. Neither party proposed terminating the determination of joint legal custody.

See Folberg, Joint Custody Law — The Second Wave, 23 J.Fam.L. 1, 10 (1984) (disagreement prompting designation of sole legal custodian).

In a memorandum, the trial court observed the conflict between joint custody rights and a decision made by appellant without respondent's consent. The court observed that home schooling would further preclude outside input on the child's education. The court expressed agreement with respondent that the parties "must be compelled to cooperate" in the upbringing of the child. The court further concluded that it was not possible to determine in which school the child would perform best, and that this was "not the issue." The court found flaws in studies comparing academic performances of home schooled children with the more diverse public school population, but concluded in addition that the studies on home schooling were "irrelevant" to the issue in the case.

ISSUES

1. Did the trial court employ the correct standard in determining the dispute of the parties?

2. Should the physical custodian's major decisions enjoy presumptive weight?

ANALYSIS 1.

In determining custody, the court "shall consider the best interests" of the child. Minn.Stat. § 518.17, subd. 3(a)(3) (1988). The law makes no distinction between general determinations of custody and resolution of specific issues of custodial care. See. Auge, v. Auge, 334 N.W.2d 393, 397, 399 (Minn. 1983) (permitting proof by a noncustodial parent that removal of the child from the state "is not in the best interests of the child").

Here, the trial court attempted to resolve a custodial issue by identifying the nature or weight of competing joint custodial rights. That standard is not in accord with the mandate for a decision based on the child's best interests. In addition, as appellant contends, a measure of the joint rights of the parties is inevitably futile; although the motion proceedings focus on respondent's disagreement, appellant has stated a truism that "she is half the disagreement in the case." The issue must be resolved according to the best interests of the child. See In re Marriage of Bolin, 336 N.W.2d 441, 447 (Iowa 1983) (as between joint custodians, issue of physical care resolved by the court according to the children's best interests).

In the circumstances here, we must remand for the trial court's determination of the child's best interests. Although, as the trial court observed, this is no easy task, justice in the case cannot be achieved through any alternative presumption in favor of either joint custodian.

2.

Appellant would have us go further to determine that the physical custodian's wish must prevail unless respondent shows "the child's physical or emotional health is likely to be endangered or the child's emotional development impaired." Minn.Stat. § 518.176, subd. 1 (1988) (the right of the "custodian" to determine the child's upbringing). See Minn.Stat. § 518.003, subd. 3(e) (1988) (defining "custodian" as the person who has physical custody of the child). See also Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983) (extending Auge presumption for freedom of removal to case involving joint legal custodians). Under existing law, we conclude that neither party has a preferred right to decide the educational issue.

Minn.Stat. § 518.176, subd. 1, enacted in 1978, establishes the physical custodian's right to "determine the child's upbringing, including education, health care, and religious training." 1978 Minn. Laws, ch. 772, § 43. Three years later, the legislature enacted the definitions of custody now found in Minn.Stat. § 518.003, subd. 3. "Joint legal custody," the legislature declared, involves equal rights of parents, including the right to participate in major decisions "determining the child's upbringing, including education, health care and religious training." 1981 Minn. Laws, ch. 349, § 2. Minn.Stat. § 518.003, subd. 3(b) (1988). It is evident the 1981 enactment deals precisely with those powers addressed in the 1978 law, at least as to "major decisions." Id. Educational decisions are specifically mentioned in both provisions. We conclude the specific enactment on joint legal custody supersedes the earlier provisions on powers of a physical custodian. See Minn.Stat. § 645.26, subd. 4 (1988) (the latest of irreconcilable provisions prevails).

DECISION

The trial court's order on the educational issue is reversed and the proceedings remanded for a determination of the child's best interests.

Reversed and remanded.


Summaries of

Novak v. Novak

Minnesota Court of Appeals
Dec 1, 1989
446 N.W.2d 422 (Minn. Ct. App. 1989)

holding that where joint custodians disagree on choice of school, the issue must be decided consistent with the child's best interests

Summary of this case from Levine v. Levine

concluding that because the legislature enacted Minn. Stat. § 518.003 in 1981, that section supersedes Minn. Stat. § 518.176, subd. 1, which was enacted earlier

Summary of this case from In re Marriage of Henderson v. Henderson

reversing and remanding for the district court to resolve, based on a child's best interests, the joint legal custodians' dispute about where the child would attend school

Summary of this case from Hirabayashi v. Sorn

recognizing that district court can resolve, consistent with children's best interests, joint legal custodians' disagreement about school choice

Summary of this case from IN RE TAN v. SEEMAN

recognizing that district court must resolve, consistent with child's best interests, joint legal custodians' disagreement on choice of school

Summary of this case from Lee v. Herbert

In Novak v. Novak, 446 N.W.2d 422 (Minn.App. 1989), review denied (Minn. Dec. 1, 1989), this court concluded that a district court should consider the best interests of the child (not the "nature or weight of competing joint custodial rights") when resolving a disagreement between joint legal custodians about a child's education.

Summary of this case from Leak v. Leak

noting that joint legal custodians' disagreement regarding schooling of their child should be resolved based on the child's best interests

Summary of this case from Blair v. Blair (In re Marriage of Blair)

explaining that joint legal custody award gave parties equal rights to decide type of schooling joint child would receive

Summary of this case from Wolf v. Oestreich

noting that district court should resolve disagreements between joint legal custodians consistent with best interests of child

Summary of this case from Wolf v. Oestreich

noting that joint legal custodians have equal rights and responsibilities regarding their child's schooling, and that courts decide disputed questions based on the child's best interests

Summary of this case from Chamberlain v. Fleahman (In re B. L. F.)

noting that "[t]he law makes no distinction between general determinations of custody and resolution of specific issues of custodial care"

Summary of this case from Hirabayashi v. Sorn

noting that school decisions must be resolved according to children's best interests

Summary of this case from Hanson v. Wetherby

stating that no legal distinction exists between general custody determinations and resolution of specific custodial-care issues

Summary of this case from Hanson v. Wetherby

In Novak, we held that when parents share joint legal custody of a child, both parents have the equal right to participate in major decisions determining the child's upbringing, including education.

Summary of this case from Haugen v. Adamek

stating that "[t]he law makes no distinction between general determinations of custody and resolution of specific issues of custodial care"

Summary of this case from In re Marriage of Higgins v. Fritz

noting possible discrepancies between the rights granted under Minn. Stat. § 518.176, subd. 1, which was enacted in 1978, and rights granted under Minn.Stat. § 518.003, subd. 3, which was enacted in 1981, and resolving discrepancies in favor of the more recently enacted Minn.Stat. § 518.003, subd. 3

Summary of this case from Tarlan v. Sorensen

resolving a dispute between custodial parent who wanted to home-school child and non-custodial parent who wanted child enrolled in public school by remanding for a determination of child's best interests

Summary of this case from Hilgart v. Hilgart

instructing the district court to apply the best interests standard to determine whether the child should attend public school or be "home schooled" by the mother

Summary of this case from In re Dawson v. Dawson
Case details for

Novak v. Novak

Case Details

Full title:In re the Marriage of Ellen Gay NOVAK, n/k/a Ellen Gay Boertje…

Court:Minnesota Court of Appeals

Date published: Dec 1, 1989

Citations

446 N.W.2d 422 (Minn. Ct. App. 1989)

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Wolf v. Oestreich

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