Family law attorneys and their clients have been met with a variety of challenges since the start of the pandemic: how to safely manage parenting time, domestic violence concerns with abusers and survivors continuously stuck in the home together, courts being inaccessible and eventually Zoom hearings. We had all hoped that COVID would disappear by the summer, but clearly that is not the case, and the newest challenge is how best to school children this fall. Without a clear mandate from the government, most school districts are providing parents with a choice between in-person and virtual learning. The decision is difficult even for intact families, but when parents are divorced, it can lead to gridlock. The decision of in-person versus virtual learning is a legal custody issue that must be made jointly and agreed upon. But what is the remedy when the parents do not agree?

Judges often hear school choice disputes where they have to conduct evidentiary hearings. A prepared parent and lawyer typically file a motion well in advance of the start of the school year. But in this instance, parents have been in limbo waiting to see what happens with COVID, what the state mandates and what their school districts decide. Most districts only announced plans in the first week or two of August, leaving parents and courts in an impossible time crunch. What can parents do?

The standard option when parents have a joint legal custody dispute is to file a motion with the court. More than ever, the facts of your situation will be critical: the age and grade of the child, health issues in either household, details about the virtual teaching platform, both parents' employment situations, the availability of third parties such as grandparents or new spouses, child care, transportation, a child's learning disabilities, etc. Courts do not have any legal precedence on this particular issue, and there are many competing expert opinions available. Even the CDC has modified its guidelines over time, so the medical guidance may not be as solid as it is with infant vaccines. Everyone has a different risk tolerance with COVID and this is a decision with no right answer. As always, your judge's personal views may influence the outcome. Is the judge more cautious and less likely to make a decision that could irreversibly impact the health of the child, or is the judge likely to focus on the practical and financial issues of the family? Is the case a high-conflict case where one parent is likely filing the motion to harass the other? What if the time crunch makes it impossible to get into court to even address these issues?

If your judge cannot schedule a hearing in time, you can try alternative dispute resolution methods, such as mediation or arbitration, with a seasoned family law attorney. Before engaging in any discussions, be sure to have as much detailed information from the school district as possible. It is important to involve children in the discussion regardless of their ages. Older children may have relevant input to consider and may have questions of their own related to the structure of the day offered by schools, including how they will handle lunch, recess, assemblies, field trips, after school activities, etc. Younger children can be educated about the importance of masks and social distancing as it relates to their school day so that they can report to you what they observe in school if they are attending in person. You can explore online for educational interactive resources and extra-curricular activities for children if one parent is concerned about children being limited to online learning. Disagreeing parents can defer to their pediatrician – ask how he/she keeps their own family safe from exposure. It may make sense to work on an agreement only for the first semester and revisit after the new year. If parents are able to agree that any changes to the parenting time schedule to accommodate these unique learning options are temporary and not intended to modify existing school or parenting time arrangements, it may be easier to make decisions before school starts.