Saved by the Bell…or the Judge!

It is that time again; where summer is ending, children go back to school, the traffic becomes heavier, and parents gear up for a jam-packed schedule of homework, group projects, extracurricular activities, and conferences.  Most parents are secure in the understanding of where their children will be attending school.  However, for those parents who have no Agreement or Court Order in place, this can be a trying time. Absent a Court Order or Agreement regarding custody, both parties have equal rights to where their children go to school (CAVEAT:  so long as they meet the requirements of the individual schools, living in the school district, etc. ) This means that if your ex-spouse suddenly decides to move to another school district and enrolls the child there, he or she has the right to do so.  If this happens to you, it is important to act fast and secure counsel to assist you in remedying the situation as soon as possible, before school starts. While it is advisable to have an Agreement and/or Court Order that speaks directly to the issue of school placement to avoid this type of disaster; the reality of the situation may be that entering into these documents is not realistic.

What do you do in these types of situations, where time is running out and you are helpless as to your rights to remedy this type of situation?

First and foremost, you need to inform the other side that you are not in agreement with their unilateral change of schools.  That needs to be explicitly stated so your position is clear.  Second, retain competent counsel who can assist you in rectifying the situation. You have options available to you, albeit limited due to the North Carolina statutes and the short time frame.  In most situations, there are three main avenues available to you: (1) filing an Ex Parte Emergency Custody Order, (2) Scheduling a Temporary Parenting Arrangement and/or temporary custody hearing or (3) filing an Ex Parte Temporary Restraining Order/Injunctive Relief.  Counsel will discuss with you each of these possibilities and whether or not they are applicable to your situation.

1. Ex Parte Emergency Custody Motions: Ex Parte means without notice to the other side so you have the right to approach the Judge alone. However, there are local rules in some counties where you need to attempt to provide the other side with some notice of your intent to approach the Judge. It is important that you follow these local rules in your jurisdiction. This type of Motion should only be used sparingly and only when the facts warrant that type of intervention.  Circumstances that warrant filing this type of action are where the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts. Speak to a qualified domestic attorney to make sure your circumstances fall into this category prior to filing.
2. Temporary Parenting Arrangement (in Mecklenburg County) or scheduling a temporary custody hearing: Some counties do not have temporary custody hearings but do have other mechanisms in which you can petition the Court to hear your issue on a temporary basis. For example, in Mecklenburg County due to the backlog of cases there are no temporary custody hearings. However, the local rules permit an application to the Judge for a Temporary Parenting Arrangement, if your case meets the requirements.  Speak to a qualified domestic attorney regarding your options with this type of filing and whether or not your jurisdiction allows temporary custody hearings and the processes for same. The inherent problem with trying to schedule a Temporary Parenting Arrangement or temporary custody hearing is the availability of the Judges. It may not be scheduled for months at a time, meaning the children are already matriculated in the new school prior to you being heard on the issues. It is important to get this issue in front of a Judge as soon as possible.  Once the child is enrolled in the new school, a status quo will be formed and Judges are less likely to change the school placement once the children are used to the new school, especially if they are doing well in that school system.
3. Ex Parte Temporary Restraining Order and/or Injunctive Relief: A Motion of this type forbids the other party from enrolling the child in the other school.   In order to be successful on this type of motion, you need to prove that irreparable injury, loss or damage will result. As with the Emergency Motion, you can approach the Judge Ex Parte (meaning without the other side) but you need to make sure the local rules are followed if notice to the other side still needs to be provided. Again, please consult with an experience family attorney to see if your facts warrant this type of Motion.

Due to the fact that you likely only get one shot to remedy the wrong, it is important to consider all remedies available to you.  It is important to note however, that even with this Status Quo Order, there is also the issue of whether the previous school can even take the child back into their school system. The school board dictates the requirements for matriculation.

If this is the type of situation you find yourself in, please contact a qualified domestic attorney at Sodoma Law so that we can work together immediately to find the right resolution for you.