As we quickly approach the beginning of the 2020-2021 school year, school districts across the state are working to come up with plans in the COVID-19 era. Some school districts and private schools plan to resume in-person classes as “normal,” while others plan to offer parents the option of either in-person schooling or virtual learning from home. There are even a few school districts planning to implement a “year-round” school calendar that extends the school calendar from early August 2020 to early June 2021 with additional planned weeks of holidays and time off during the 11-month school year.
Unforeseen Issues in the Right to Make Educational Decisions
This unprecedented school year could bring new areas of conflict for divorced or separated co-parents who have a custody order that governs their possession schedule as well as the decision-making powers related to their children (such as the right to make educational decisions). For example, if the parents’ custody order states that the children will go to the public school in the district where mom resides and that all other educational decisions will be joint (i.e., subject to the agreement of both parents), what happens when the school district gives the option of in-person school or virtual school? If the parents agree to an option, then there’s no problem; but what happens when one parent is adamant that the children return to school in-person and the other is adamant that the children remain at home until this pandemic is over? While educational decision disputes between divorced parents are not novel, this particular issue was likely unforeseen by a vast majority of parents, lawyers, judges, and lawmakers when agreeing to and drafting a parenting plan, issuing a ruling, or writing the law.
The process to Resolve Potential Dispute
However, some parents may have built-in tiebreakers or dispute resolution processes in their custody orders intended to handle these types of unforeseeable issues, including pursuing mediation, utilizing the collaborative law process, working with a parenting facilitator, or working with an educational consultant. If those processes are unsuccessful, judges may see an increase of cases filed with time-sensitive requests about an important decision for this upcoming school year. If the parents can’t agree (unless one parent has the right exclusively in the prior order), judges across the state may have to adjudicate these disputes in accordance with the best interest of the children. While most judges would prefer parents to decide what is best in their particular situation for their own children, judges know that sometimes they have to make a decision when the parents can’t agree.
So, what do you do if you see this issue on the horizon? Act now—the worst thing to do is to ignore it. Find out what your particular school or school district is planning for the 2020-2021 school year. Are they giving an option for in-person or virtual schooling at home? What is their contingency plan if another widespread shutdown occurs in the fall or spring? Talk to a lawyer about what your custody order or decree says regarding educational decisions (i.e., Is it a joint right? An exclusive right for one parent? Is there an alternative dispute resolution clause?). After preparing yourself with as much information as you can, talk to your co-parent to determine whether this is something you can resolve together. If this is a point of contention between the two of you (for example, you want your children to return in person to school, and your ex-spouse is adamant about them staying home for virtual learning), then the earlier you can identify the issue the better. It gives you time to explore constructive and productive processes such as mediation, parenting facilitation, collaboration, etc. before having to resort to filing a lawsuit with the court to resolve the dispute.
The other advantage of taking steps now is to give yourself the best chance of bringing any unresolved issue before the court prior to the start of the school year. In addition to creating issues like this, COVID-19 has also made it more difficult to get issues resolved by Courts, especially if the issue is time-sensitive. So, waiting until the last minute may keep you from getting a timely resolution. While most would agree that asking a judge to make the decision about what is best for your children is a last resort, that option still needs to be available to you before the school year begins so you and your children are not thrust into chaos at the beginning of the school year. There are enough chaos and uncertainty right now—avoid adding to it by getting in front of these educational decisions as soon as possible.