The language in the Texas Family Code creates two rights that directly affect what school a child will attend.  The first is the right to determine the child’s primary residence and the second is the right to make educational decisions.  The code requires in a contested hearing that one parent be given the exclusive right to determine the child’s primary residence but allows the Court to require both parents make educational decisions by agreement.  In the large majority of cases this is exactly what the Court order will say.  Notice that neither right specifically addresses what school the child would attend if there is not an agreement.

The appellate Courts have weighed in to both clarify and confuse.  In Doncer v. Dickerson, 81 S.W.23d 349, (Tex.App.-El Paso 2002) the court states that the purpose of the Family Code requirement that a child have a primary residence is because “one parent must have the ability to determine residency for the purposes of public school enrollment if the parents reside in different districts.”  This is straightforward enough and how everyone trial judge I have been in front of understands the code.

Be aware, however, the 3rd Court of Appeals which governs Travis County in an unpublished opinion has stated a different interpretation.  In In re Scott COLE, 2014 WL 3893055 the trial court ordered on temporary orders that a child attend a school district outside the district the parent (the father in this case) with the right to determine the primary residence lived.  Oddly, neither parent lived in the school district ordered by the trial court.   The father appealed stating the Court was divesting him of the right to determine the primary residence on temporary orders which would require a showing that the child’s health safety or welfare was threatening which the Court had not found.

The 3rd Court of appeals in upholding the decision stated “by designating the child’s “primary residence” the person with the right to do so has also identified in which public school the child has the right to enroll.  But the court (in Doncer) did not go so far as to hold that the person with the exclusive right to designate the child’s residence also necessarily has the exclusive right to choose the public school the child will attend.”  

This is a 2014 decision and I have yet to see another lawyer make the claim that the Cole decision supports. Despite the 3rd Court’s assurance’s this clearly flies in the face of the Doncer decision.  Bluntly, the Cole decision is bad law that would sow chaos in the family courts, but it’s out there.