back to school custody disagreements in COVID

Many school districts and private schools have announced their plans for resuming school this fall amidst the coronavirus pandemic. The majority of schools have opted for hybrid learning, where students will attend two days a week in person and three days a week online, with elementary school children perhaps attending every day. Some schools have decided to remain in virtual learning the full semester, while others have decided to go back completely.

At present, any return to school in person remains somewhat problematic in that we know we run some risk of exposure to the virus but not how much risk. Families with individuals most at risk if they catch the virus – older adults, people with compromised immune systems or certain health conditions – naturally worry that returning a child to school in person could bring family members closer to exposure.

Given the uncertainties, parents may hesitate in deciding whether to send a child back to school in person or not. But this issue becomes rather fraught for divorced parents who share joint legal custody – if they disagree, what happens? How do they handle the impasse?

While parents with sole legal custody must discuss the matter with the other parent, a sole legal custodian can make the final decision. In a joint legal custody situation, both parents must agree on an educational issue. If they do not, their parenting plan usually provides for some form of dispute resolution, usually through a mediator.

With schools asking students to commit to a decision quickly, getting to mediation – let alone the courthouse – will be a challenge.  

Can the courts even be a useful avenue in this situation? From a practical point, probably not. An attorney could file an emergency order, but it will depend on the individual court and judge to decide whether to take any action on that request prior to the deadline to select which school option the child will use.

It would be best if parents with sincere disagreements they cannot resolve themselves hire a mediator whom they both approve and that they will submit to a mediation virtually to try and resolve the matter. Mediators usually try and help parties reach an agreement rather than rule like a judge and make a decision, and mediation is not binding as it can be challenged subsequently in court. However, if the parents, recognizing the emergency nature, choose to allow the mediator decision to govern the fall semester, they may do so.

The issues may not be as simple as it appears. If a child cannot return to school, a parent may have employment issues or childcare issues or both. A return to school in a hybrid situation could also cause the same issues. If parents cannot be flexible about helping one another out, the school issue becomes a physical custody issue as well. Furthermore, if the family of one parent has an at-risk household member and the child still goes back to school in person, how does the custody schedule account for this fact? These are thorny questions that do not have easy answers for some families.

Different options parents could consider would be to present their case to their child’s pediatrician in an arranged online meeting. The parents could have their pediatrician, and potentially add their own internist or treating physician of the at-risk household member, all together to discuss the medical risks of the different school plans. We would suggest parents pursue this option at a minimum first because it provides solid medical advice from the physicians who know the family members the best.  

Return to school will pose many challenges, including even deciding how to return.

If you have questions about how to handle custody matters relating to a return to school, contact us – we can help.