A father with joint custody of his two children filed a petition to modify child support payments, including a reduction of his obligation to pay tuition for them to attend a private religious school. A commissioner ruled that Father was required to pay the tuition based on the parents’ pattern and practice of sending their children to private religious school before and after their divorce. The commissioner found that neither parent could modify the schooling choice without consent of the other or a court order. Father’s appeal of the commissioner’s ruling is still pending. Father subsequently filed a petition in family court to enforce the parties’ parenting plan, arguing that the commissioner’s ruling violated the parenting plan’s terms and his constitutional right to direct his children’s education and upbringing . Judge Rea ruled Father’s favor, reduced Father’s child support obligations, and required Mother to select a different school. Mother filed a special action petition. The Arizona Appellate Court accepted jurisdiction.
Division One of the Arizona Court of Appeals vacated the family court’s order. First, the Court held that a private religious school could not be precluded from consideration solely because it is religious school, reasoning that the parties’ parenting plan provided for mutual cooperation as to the children’s education and religious upbringing and gave neither parent the ability to object to placement in a private religious school. Second, the Court held that a best interest standard applies when determining a child’s school placement. The Court identified numerous factors to be considered in making the best interests determination, including those set forth in A.R.S. § 25-403(A). Finally, the Court held that, notwithstanding a parent’s objection, the superior court may order the objecting parent to participate in paying for private religious school tuition if the court concludes that it is in the best interests of the children to attend such a school. The Court noted, however, that a superior court can also decline to order these expenses based on the parents’ inability to pay the tuition.
Judge Barker authored the opinion, Judges Weisberg and Gemmill concurred.