Appeal from an order of the Family Court of Albany County (Duggan, J.), entered January 24, 2013, which, in a proceeding pursuant to Family Ct Act article 4, denied respondent’s objections to the order of a Support Magistrate.
Petitioner (hereinafter the mother) and respondent (hereinaf
We affirm. Initially, we conclude that the father’s reliance on the parties’ written agreement that the mother would bear the cost of the child’s tuition is misplaced, as Family Court has no jurisdiction to enforce such independent contract (see Matter of Hirsch v Schwartz, 93 AD3d 1114, 1115 [2012]; Matter of Zamjohn v Zamjohn, 158 AD2d 895, 896 [1990]). We are also unpersuaded by the father’s argument that the award of educational expenses was unwarranted. Where, as here, the parties’ opting-out agreement and divorce judgment are silent with respect to educational expenses, a court may direct a party to pay such expenses where appropriate and as justice requires, “having regard for the circumstances of the case and of the respective parties and in the best interests of the child” (Family Ct Act § 413 [1] [c] [7]; see Matter of Overbaugh v Schettini, 103 AD3d 972, 974 [2013], lv denied 21 NY3d 854 [2013]; Matter of Juneau v Morzillo, 56 AD3d 1082, 1084-1085 [2008]; Matter of Naylor v Galster, 48 AD3d 951, 952 [2008]). Relevant factors to be considered include, among other things, the parents’ educational backgrounds and ability to pay (see Matter of Overbaugh v Schettini, 103 AD3d at 974; Matter of Juneau v Morzillo, 56 AD3d at 1085).
We agree with the father’s argument that Family Court erroneously concluded that the father’s consent to the child’s atten
Nonetheless, we find that the record as a whole supports the conclusion that the child’s transfer to the private school was in his best interests. The record reflects that the child suffers from a variety of health related issues, including attention deficit hyperactivity disorder and auditory processing disorder. At the hearing on her petition, the mother recounted the difficulties that the child was experiencing in public school before he was enrolled in the private school, such as his suffering from anxiety and depression, as well as problems completing his homework— which resulted in his repeatedly being given detention—and his resistance to going to school. All of these issues prompted the mother to seek an alternative educational placement for the child. Although the father argues that the mother failed to proffer evidence demonstrating that the private school offered any services to address the child’s problems or was otherwise better equipped than the public school to handle his issues, it is evident that the child’s emotional state significantly improved once he began attending the private school. Notably, in a September 2012 journal entry for one of his classes, the child wrote: “I was a kid who was bullied, depressed, and underestimated. But I found a light in the darkness, ... I met awesome friends and the nicest teachers I ever encountered. Thank God I found [my new school]!” In addition, the child’s anxiety medication has been decreased since he changed schools and was expected to be further reduced following reevaluation. The father and mother both agreed that the child was doing well socially and academically at the private school, where he has made friends and participates in extracurricular activities.
In concluding that the father should contribute to the expense of the child’s attendance at the private school, Family Court also properly considered the cost of the tuition—$5,600 after deducting financial aid awarded to the child—as well as the parties’ financial circumstances. The record reflects that both parents are professionals and the father has the financial re
Ordered that the order is affirmed, without costs.
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The father does not challenge Family Court’s calculation of his pro rata share.