COVID-19 & school: What if you & your coparent disagree?

You can’t turn on the TV today without being confronted with the debate about children returning to in-person school this Fall. There are so many competing interests in determining what is best for our children when it comes to COVID-19 and school. Let me be upfront. This article isn’t going to talk about any of those. What this article is going to cover is what to do if you and your co-parent disagree about COVID-19 and school this Fall.

When schools closed in the Spring, parents had to navigate novel custody issues such as virtual learning, social distancing, loss of childcare, and changes to their physical custody schedule because their children were home from school. Some coparents did it well and some did it, not so well. Which camp did you fall in?

Now coparents are faced with a new challenge: what to do about COVID-19 and school in the Fall. Should you stay (at home) or should you go? And what should you do if you and your coparent disagree about that decision?

I’m going to be upfront again. Let’s be honest, when am I not? Just like COVID-19 custody issues in the Spring, this is unchartered waters for the courts, divorce lawyers and parents. There is a lot we know, but also a lot we don’t know about COVID-19. There are also a lot of things to consider and questions to ask when deciding what is the best thing to do when it comes to COVID-19 and school reopening. Let’s wade through them together.

What is the first thing you should do about COVID-19 and school in the fall?

The first thing that you should do about COVID-19 and school is talk about it with your coparent! C’mon, you knew I was going to say that, right? Chances are, you and your coparent have shared (or joint) legal custody. This means that both of you have equal right to make decisions regarding the health, safety and welfare of your children. What does that mean in plain English? You need to start talking.

You may be asking, shouldn’t we wait until the school district makes a decision first? No. You should start this conversation even if your school district has not yet put forth their plan regarding COVID-19 and school this Fall. Why is this so important?

It is best to know if you and your co-parent are generally on the same page about COVID-19 and school as soon as possible. Do you both agree that no matter what the district says your children will stay home? Do you both agree that you will follow the school district’s decision no matter what? What if you don’t agree? Are either of you willing to ask the Court to intervene? Knowing the other parent’s preliminary thoughts on this topic will help you know if you should be preparing for a fight on this issue or (hopefully) not.

What is your school district doing about COVID-19 and school this Fall?

While some school districts have already come out with their plans for COVID-19 and school reopening, others have not. Do you know what your school district has decided? You should. Also, does your coparent live in a different school district? If so, and your children could legally enroll at that school, what is that district planning to do? You need to know that too.

Why? What your coparent’s district is doing may matter for two reasons. First, if you and your coparent prefer the school reopening plan for his or her district, then you may want to consider enrolling your children there, for at least this year.

Second, if you and your coparent disagree about COVID-19 and school reopening this Fall, it’s good to know what the other parent’s district is doing. Why? If you go to court, he or she may argue that their district’s plan is better and thus, your children should attend school there. So you need to know both plans and the pros and cons of each.

Remember, if you want the school district change to be temporary it is very important that you say so in writing by either modifying your custody agreement or making a separate agreement about this specific issue. Courts tend to favor status quo and thus are hesitant to keep moving kids from one district to the other.

What should you do if your school district gives you the option of virtual school for this Fall?

I have heard of a few school districts that are giving parents the option for virtual classes or in person instruction for the fall semester. What should you do if your district is one of these? Just as with the Spring school closures, there are a lot of things to consider when it comes to virtual school vs. in person instruction for your children, such as:

• Do you have a strong internet connection and a computer they can use;
• Is there an adult that can work from home or forgo work to supervise this instruction;
• If both parents work outside of the home, do you have the financial means to hire a caregiver to provide supervision;
• Does your child have learning disabilities such that virtual instruction is difficult for them?
• Does your child have learning disabilities such that virtual instruction is actually better for them?
• Is your child immune compromised such that in person instruction could expose them to a grave health risk; and/or
• Is someone else in your household (or your coparent’s household) immune compromised such that your child going to school would pose a grave health risk to that household member?

These are all questions that you and your coparent are going to need to consider when deciding which option to choose. Hopefully, by having a thoughtful conversation about all of these concerns, you and your coparent can come to an agreement about what to do with COVID-19 and school in the Fall.

What should I do next if my coparent and I still disagree about COVID-19 and school?

So you maybe saying, Liz, I listened to you and had a thoughtful conversation with my coparent about COVID-19 and school. And guess what? We still disagree. Hey, I knew that was coming. So, what should you do now?

First, if you have not done so already, I would consult with an attorney in your area as to what he or she thinks that you should do and the likelihood of success. COVID-19 and school reopening is a novel issue for most places (and courts). However, it is possible that your lawyer will have received some guidance either from the court itself or from other family law lawyers as to how the judges in your area are dealing with this issue.

The next step would be to file a petition or motion in family court to have a judge make this decision for you. I would suggest filing that document ASAP as school is merely weeks away in some states. In evaluating your filing, the judge will likely consider the answers to the questions I posed above in addition to the following:

• How did your child fare with virtual learning at the end of last year?
• If your child had to go to a different school district for in person instruction how would he or she get here?
• If you are proposing a change to the school district would it be temporary or permanent?
• Would changing schools require a change to the physical custody schedule?
• Would virtual learning require a change to the physical custody schedule?

In general, judges prefer maintaining the status quo. Meaning, they are not likely to rock the boat and change your child’s school district or type of schooling without good reason. They also are likely going to defer to the decisions of the district. Remember, judges are trained as lawyers, not educators. As such, they are going to defer to the expertise of school officials in their decision about your petition.

Does this mean you should forget filing a petition about COVID-19 and school all together? Not necessarily. However, it does mean that if you are the parent who wants to go against status quo, you may be facing a tough battle.

Is it hopeless? No. However, you need to be prepared to show your judge why a certain type of school instruction would be bad for your child. In other words, why your child’s circumstances warrant something different than what the school district or your coparent is suggesting to address COVID-19 and school this Fall. So how do you do this? With evidence of course! Here are some ideas:

• If possible, get an expert to weigh in on why your requested type of school instruction is best for your child, such as a child therapist or education expert;
• Show how your preferred method of instruction would provide minimal disruption to your physical custody schedule and is actually something that you can do given your work schedule and lifestyle;
• Be ready to provide medical evidence as to why in-person instruction could be harmful to your child or another family member in your home;
• Bring reports cards to show how well (or how poorly) your child did with virtual learning;
• Have a plan on how you would provide virtual instruction to your child each day and/or who you would hire to help you if you have to work;
• If your child is old enough, have him or her testify as to their preference for a certain type of instruction; and/or
• If your school district is not offering virtual instruction, provide evidence about your proposed virtual program and its cost.

Being able to show the judge that you have a valid reason for your position regarding COVID-19 and school this Fall gives you the best change of having them side with you and against your coparent.

What you should you and your coparent do about COVID-19 and school this fall?

From stay at home orders to mask wearing, COVID-19 and school reopening is the next (and hottest) issue of this pandemic. So what should you and your coparent do about this issue before school starts? Here are my suggestions:

• Start talking to your coparent ASAP as to what you believe is the best type of instruction for your child;
• Research what your school district is doing with regards to COVID-19 and school reopening;
• If your children could legally go to school in your coparent’s district, make sure you understand that district’s plan for COVID and school instruction this fall;
• If you and your coparent disagree, consult an attorney in your area about your options and likelihood of success; and
• If you do go to court on this issue, be prepared with the right evidence to argue your position and win your case.

Need more information about COVID-19 and custody issues? Make sure that you check out my article about following your custody order during COVID-19 and my earlier article about navigating COVID-19 custody issues regarding school and child care. Although these posts were written in the beginning of the pandemic, they are still applicable to the issues facing many coparents today. Or, still in summer mode and need help with COVID-19’s affect on your summer custodial vacation plans? Get my three ways to deal here.

What’s next on the Divorce Lawyer Life?

We all know summer is wedding season. Well, maybe not so much this year. Despite everything that is going on people are still getting engaged and getting married. And with an engagement comes a prenuptial agreement. Well, it should. Want to ask your fiancee to sign a prenuptial agreement but not sure how to ask? Don’t worry, I got you! Check back next week for your how to guide on asking your intended to sign a prenup.

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