Absent a court order specifying which parent is entitled to make educational decisions, the New York City Department of Education will follow the instructions of the primary physical custodian.

The policy was upheld in the October 22, 2013 decision of the First Department in Jennings v. Walcott. The appellate court reversed  the determination of  Supreme Court, New York County Justice Alexander W. Hunter, Jr., which had declared arbitrary and capricious the Department’s policy of deferring in educational decisions to the parent with primary physical custody. Justice Hunter had ordered the Department to include the father as a joint legal guardian on his child’s school file.

The policy of the Department of Education is to take direction from the parent with primary physical custody where, as here:

the divorced parents of a student have joint legal custody of the student;

the parents are unable to agree on a decision as to the student’s education; and

there is no court order specifying who is entitled to make educational decisions.

The Department had adopted this policy to avoid becoming entangled in custody disputes.

In Jennings, the First Department held that given the options available to the Department for resolving such a disagreement, it could not be said that the policy was without a rational basis in the record. It was not, therefore, arbitrary and capricious.

The appellate court pointed out that this policy did not affect the father’s legal rights as a parent with joint legal, but not primary physical, custody. The father was free to pursue a modification of his judgment of divorce to provide for joint decision-making as to the child’s education.

The opinion did not recite whether or not any stipulation of settlement incorporated into the father’s divorce decree contained a decision-making clause, or whether such a stipulation or the judgment merely declared the parents would share joint legal custody. Similarly, it was not stated whether the Department was refusing to honor an agreement that was incorporated by reference into the divorce judgment.

However, to be prudent, all parental rights should be specifically set forth in the judgment of divorce.

Kathy H. Chang, of counsel to Michael A. Cardozo, New York City’s Corporation Counsel, represented the Department. Thomas D. Shanahan, P.C., represented the father.