School Choice and COVID-19
Many parents are wrestling with the difficult decision what to do about school in the midst of the Coronavirus pandemic. Some have decided to continue homeschooling their kids using online learning tools. Others feel it is sufficiently safe to resume in-person classes. And some schools offer a hybrid approach where kids attend in-person class 2-3 days a week and do online learning from home the rest of the time.
This is a difficult decision to make even for intact families where both parents get along. It is even more challenging for divorced and separated parents who had difficulty agreeing before COVID-19 existed. Many of these parents rightfully want to know what to do and what will happen if they cannot reach an agreement with their co-parent.
Generally when parents share joint custody their court order will have a section addressing how they are to resolve major decisions like what school their kids go to, doctors they see, etc. While it is unlikely anyone contemplated the scope of problems caused by COVID when they entered into these parenting plans, these plans exist to deal with unforeseen contingencies. If your decree designates a specific parent as having tie-breaking authority over school choice issues then they likely get to decide whether the kids return to in-person classes, online learning, or a hybrid approach. These plans typically state if the other parent disagrees with that decision then the parents must attempt mediation. If mediation fails to produce an agreement then the parents can ask the court to make a final decision what to do about their children’s school.
Some parenting plans designate a specific individual like a “Special Master” or “Parenting Coordinator” to act as a tie-breaker when the parents themselves cannot agree. If so, that individual would get to decide the school choice issue. If either parent did not like that decision they could then file a motion asking the Court to reconsider.
If your court order is silent on who has tie-breaking authority over major issues when the parents cannot agree, the Utah Code states that generally whoever has the majority of annual overnights gets tie-breaking say by default (subject to the other parent’s right to file a motion asking the Court to review that decision). The intent of this rule is to avoid a situation where kids are left in limbo with no one able to make an immediate decision what they do for school.
If you are reading this it is likely because you want me to tell you what the Court is going to do if you and your ex cannot agree and take the issue before the Court. Unfortunately because this issue is so new there is no published guidance from the Courts (as of writing). That being said, my opinion is the Courts will likely defer to the dispute resolution process in existing parenting plans unless there are extenuating circumstances. For better or worse, good arguments can be made in favor of returning kids to in-person school as well as keeping them at home and it does not take much effort to find experts willing to back up either position. What might be the best decision for one family may not work for another. Relevant factors the court will likely consider is the age and relative health of the children and parents (in other words, is anyone in the family immune-compromised or especially susceptible to COVID?), how the children did academically and socially after schools initially closed in the Spring (did homeschool work? was it a disaster?), do the parents have the professional flexibility to accommodate homeschooling, would the children benefit more from in-person instruction versus remote learning, do the children have any learning disabilities or special needs that would be hard to address remotely, would the children benefit from the socialization in-person classes provide, and are the children likely to continue in their current school program whatever it may be?
Give the attorneys at Wiser Family Law a call at 855-254-2600 to discuss this issue if you need legal representation regarding school choice in the age of COVID.
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