Back to School: Tips for Divorced Parents (August 2020 Updates)

The beginning of every school year brings certain challenges for parents. However, parents are facing new challenges as a result of COVID-19, particularly parents living in separate households with shared physical custody of their children. The added stress and anxiety associated with these circumstances can give rise to added conflict with an ex-spouse, particularly if there is already a history of conflict. It is important, now more than ever, for parents to remember to focus on the best interests of their children. Because many courts across the country are still operating on a limited or emergency basis, it may be more difficult to access the Courts. As a result, parents will have to rely more heavily on their own ability to resolve issues concerning their children’s education during this time, whether that is through counsel or alternative dispute resolution.

The new challenge parents are facing this school year is the decision between in-person learning, remote learning or hybrid options. The uncertainty concerning future virus outbreaks, the impending flu season, and the possibility of future governmental shut downs may make this a difficult decision for many parents. Parents’ work schedules may also impact their ability to facilitate remote learning.

New Challenges with Joint Decision-Making and the New School Year

If parent’s have joint decision-making authority for educational decisions, it may be unclear as to whether participation in remote learning opportunities offered by the child’s school is considered a major decision (requiring a joint decision) or a day-to-day decision (which can generally made without the other party’s consent). In either case, the best approach is to focus on the children and for the parents to get on the same page as much as possible as to approaching remote learning. Parents who already utilize communication tools such as Talking Parents or Our Family Wizard, can use those tools to not only communicate about learning schedules, but can also coordinate through shared calendars. Use of a shared calendar can help the parents know which parent will be ensuring that certain subject work is completed, but will also help mitigate the child’s ability to play the parents off of each other (such as telling both parents that work will be completed while at the other parent’s home).

Parents should discuss their expectations as to enforcing remote learning under these circumstances.  It would not be surprising if one parent has a different perspective or expectation than the other. One parent may feel is important to keep a strict schedule and insist that all course work is completed, while the other may feel a more relaxed approach is appropriate. Neither approach is inherently right or wrong. However, conflict between parents regarding these issues can lead to increased stress and anxiety in children, which may ultimately detract from their ability to succeed in school no matter the format. Given the lack of access to the courts and the generalized increase in anxiety, parents should be aware of these differences, and may have to be more willing to accept these differences, for the benefit of their children during these uncertain times.

Alternative Dispute Resolution Options

While it will almost always be better for children if parents can agree as to how children will participate in school, one parent may find themselves diametrically opposed with the other. In that situation, parents will have to find a way to break the impasse. The use of a decision-maker or arbitrator may provide the means to resolve the dispute. A decision-maker/arbitrator is an individual appointed to step-in and the make the decision. This person will receive information from both sides as to their points of view and then enter a decision. The process for providing each side’s perspective can range from informal discussion to the formal presentation of testimony and evidence like a trial. One major benefit of using a decision-maker/arbitrator is that the process is generally must faster than going through the court. While there are additional costs, those costs are usually shared in some way between the parties and can often end up being less overall than litigation through the Court (particularly if both parties are represented by counsel). Depending on the relevant laws, appealing or challenging a decision-maker/arbitrator’s verdict may be limited. As both sides must generally agree to use such an individual, a decision-maker/arbitrator cannot be ordered by the Court over one party’s objection.

Resolving Educational Decision Disputes through the Courts

In the alternative, parties can try resolve the issue through the Court by filing a motion. When addressing these issues Court’s will often consider things such as the safety precautions articulated by the school, the different remote or in-person options available, and any health concerns related to the children or parents. In addition to these factual considerations, there are legal considerations as well. There may be a legal question as to whether the Court has the authority to step in and make a decision as between parents with joint decision-making authority. Although this would seem to be directly in line as to the purpose of the Court, in some states it may not be a clearly decided legal issue. As mentioned above, there may also be a question as to whether the issue of remote or in-person learning qualifies as a major or day-to-day decision. If the latter, the Court may determine that a joint decision is not required an each parent can decide whether the child will participate in remote or in-person learning during their respective parenting time. Such a result could create chaos for the parents, the school, and most importantly for the child.

Challenges with Sole Decision Making Authority

Whether or not participation in remote versus in-person learning is considered a joint or day-to-day decision is perhaps more relevant if one parent has sole educational decision-making authority. On the one hand, participation in remote learning is akin to ensuring attendance at a particular school. Arguably, and depending on the specific laws of each state, a parent with sole educational making authority has the ability to enforce the child’s attendance at a specific school of their choice. On the other hand, decisions regarding attendance or absences based on illness, doctor’s appointments, etc. are more likely to be considered day-to-day decisions which do not require the consent of the other party, regardless of how major decision-making authority has been allocated. However, as noted above, if the parents are not on the same page, trying to follow different school schedules during each parent’s parenting time could lead to chaos and cause anxiety for the child.

Regardless of whether there is an allocation of joint or sole decision-making, the best approach is for parents to try to get on the same page. If that is not possible, this is a time to pick and choose battles. Since many courts are operating on a limited or emergency basis, parents should not expect to get immediate relief from the court regarding a dispute over a child’s education at this time. If disputes during this time are part of a longer pattern of issues, a parent should keep a record or journal of these issues with dates and a short explanation of the issues. This record can then be used later if the need arises.

Overall, parents should try to be aware and understand that these are uncertain times for everyone. Uncertainty is often accompanied by anxiety and fear. Anxiety and fear can often lead to emotional responses that might not otherwise be expressed. While these circumstances may present opportunities for increased conflict, some families are finding that their shared goal of keeping their children safe against an unknown but powerful threat is creating collaboration and communication. Compromise is almost always the best option to resolve disputes in family. This is even more true now.