How the Covid-19 may impact your educational decisions for your children this Fall

07/27/20

As the Fall term nears and children are getting ready to get back to school, many parents are wondering what is the best method for their children to learn; in person, or by virtual learning? Many school districts are now giving parents the option to choose. However, what if you and the other parent cannot agree and your child custody order gives both of you the independent right to make educational decisions?

Normally, when parents (Conservators) begin the custody battle for their children, the two main areas of concern are: (1) Who will get the exclusive right to designate the primary residence of the child and (2) who will have the exclusive right to receive child support. The other rights and duties of the Conservators of the children are usually independent, meaning that each parent has a right to make decisions for the children with little or no agreement from the other conservator. One of the decisions that is often left independent is the right to make educational decisions for the children. In the past, this issue was not often litigated because in general, the parent who has the exclusive right to designate the primary residence also is where the school district bases the child’s eligibility to attend a certain school within that district. So, unless the parents have agreed to send the children to a specific school, the primary residence of the child usually dictates where they attend school.

With the rise of the Covid-19 pandemic, issues regarding who can make the educational decisions are continuing to sprout up that may not have been foreseen in the past. For example, let’s take the example above when your school district is offering either in person or virtual learning. If both parents have independent rights to make educational decisions, what happens if the parents disagree whether to send the child in person or have them do virtual learning? The answer is not so simple. If the parents cannot agree to this, then the only solution is to go to court and have a judge hear the matter since neither parent has the exclusive right to make this decision. The Court will always put the best interest of the child as the top priority when considering modifying anything that will affect the child. The best thing to do is to try and reach an agreement with the other party and show yourself to be reasonable and looking out for the best interest of the child. However, sometimes an agreement may not be possible. Whatever side you are on, you need to consider some of the following questions before moving forward:

What is the best solution in regard to the health and safety of my child?
What are the possible risks of in person learning or virtual learning?
Which method is more effective and conducive to a better learning environment for my child?
Will both parents be able to follow either the virtual or in class learning schedule?
Do both parents work?
Can a schedule be made that is workable for both parents?
Does the child suffer from any condition that would make them more vulnerable to covid-19 or likely have an increased negative reaction to covid-19?
Does either parent suffer from any condition that would make them more vulnerable to covid-19 or likely have an increased negative reaction to covid-19?
Does the child require any special needs or assistance?
Is the child involved in any extra-curricular activities? If so, how will the proposed change affect them?
What measures is the school taking to protect the students?
What are the wishes of the child?
What is the age of the child (the court is more likely to take into account their wishes if they are older)

The above is not an exhaustive list, however it serves as a good starting point on what to consider before moving forward with some type of modification suit. If possible try and have an expert such as a therapist available to testify as to the impact of either virtual or in person learning which will go towards what is in the best interest of the child. Remember, Covid-19 is an unprecedented event that has caused novel litigation in many areas of the law and has required the Courts to adapt to it. There can be no guarantee of success, so if you feel strongly one way or another about how your child should be attending school, you need to start thinking about the above questions and gather as much evidence as possible that support your position in order to make the most persuasive argument to the Court. Remember, it is always important to speak with an experienced lawyer to go over your options and likelihood of prevailing before moving forward with your case.

Marco Cepeda is the Lead Family Law Attorney for Hoelscher Gebbia Cepeda PLLC. In addition to being an award-winning family lawyer, Marco is an Adjunct Professor of Legal Studies at Our Lady of the Lake University. He is a husband and father who understands the challenges of marriage and parenthood and has dedicated himself to helping clients navigate the changing family dynamics of our modern society. To set up a consultation with Marco, or any of our award-winning attorneys, call 210-222-9132 today.