For divorced or separated parents, COVID-19 presents many co-parenting challenges. Some co-parents had operated well under their current court orders until COVID-19 disrupted the routine, causing conflict. For other co-parents, COVID-19 exacerbated an already high-conflict situation. Meanwhile, kids face unique challenges – many are missing their friends, struggling with remote learning, and missing out on childhood rites of passage. Perhaps, then, it’s no surprise that family lawyers are noticing an uptick in child custody cases, many having to do with school issues, possession issues, and risk exposure issues.
Some schools are starting to open their doors for students and giving parents an option to choose remote learning or in-person learning. For parents who are divorced or separated, deciding between remote and in-person learning is often particularly difficult. Many times, parents are unclear who gets to decide whether children return to in-person school. Generally, final custody orders determine which parent has the authority to make educational decisions. In some cases, one parent has the “exclusive right” to make educational decisions and can make this decision unilaterally. In other cases, parents each have the “independent right” or the “right, subject to the agreement of the other parent” to make such decisions; in such instances, a disagreement between parents can lead to a stalemate.
Even when parents agree not to send children to school in person, they sometimes disagree on matters such as who will care for the children during the school day and how virtual learning will be managed. When the Texas Standard Possession Order is in place, the parent with the right to determine the child’s primary residence is generally responsible for a child all week except for Thursday evenings. In some instances, that parent chooses to find a childcare program or an educational “pod” with classmates and the other parent disagrees. Disputes can also arise when, for example, the parent staying home with a child is not ensuring the child is able to complete schoolwork and attend virtual classes.
Risk Management Issues
Separated or divorced co-parents, who are understandably worried for the safety and health of their children in a pandemic, also sometimes disagree about a variety of risk exposure issues such as mask wearing, social distancing, and avoiding public gatherings. For example, if one parent takes the child to a public gathering and the other wants the child strictly quarantined, a dispute can arise. We have also seen cases where one parent has a high-risk job (as a doctor, nurse, or first responder, for example) and the other parent wants to suspend or modify possession until the pandemic is over to prevent the child from being exposed to the virus. In still other cases, one parent wants the child to continue to participate in extra-curricular activities, and the other parent disagrees.
In these uncertain times, communication is more important than ever. Parents should use common sense to exchange information regarding their COVID-19 exposure risk. For example, parents should communicate about what each is doing to prevent COVID-19 exposure, whether each parent is requiring the child to wear a mask, and to what extent they are practicing social distancing. With respect to educational issues, parents should also attempt to foster open communication about matters such as in-person schooling, internet access at each parent’s home, mask-wearing, and the like.
When parents disagree on these issues, the first step in most cases is to attempt to resolve the issue without lawyers or a judge. If there is a compromise where both parents’ concerns can be addressed, coming to an agreement can allow parties to avoid the stress and expense of litigation. When parents cannot agree and hire attorneys, informal settlement or mediation are also options. In the latter, a third-party neutral (usually a lawyer) helps the parties negotiate a resolution to the dispute.
If the parties cannot resolve their dispute, litigation is an option. Our area family courts are still operating, although many hearings are held via Zoom. Because COVID-19 is unprecedented, it is difficult to predict what any given judge will rule on a COVID-19-related issue. Some factors courts may consider in determining questions such as whether children should attend school in-person include
whether the child or either parent has a high-risk medical condition,
whether the child needs special education services,
the age of the child, and
the availability of child-care.
With respect to possession issues, courts will also consider facts such as the age of the child, the parents’ potential exposure risk, and the possession schedule the parents have previously followed. A court’s determination regarding these matters is based largely on the “best interest of the child,” which is a fact-intensive determination that a family lawyer will walk through with his or her client.