Shared Custody and School Decisions During the Pandemic

High Swartz LLP

Virtual? In-person? Hybrid? What happens when parents cannot agree?

As the country continues to struggle with the COVID-19 pandemic, parents with shared custody are faced with difficult choices regarding how their children should attend school. Below is some insight and answers as to how best to deal with the decision.

Does my custody stipulation or custody order control who gets to make the decision?

Legal custody is defined in some states as “the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.” While not specifically defined, in the wake of the global pandemic, parents, attorneys and judges alike seem to acknowledge that the decision regarding a child’s means of school attendance, ie. in-person or remote, during a global pandemic constitutes a “major” decision. Thus, when turning to your custody stipulation/order for guidance regarding this situation, it is the legal custody provision you want to review.

For a parent who has been awarded sole legal custody, which is rare, the decision regarding means of attendance may be made by the sole legal custodian. For parents who have been awarded shared legal custody, the decision should be made jointly, as each parent is entitled to participate in the decision-making.

What if the parents cannot agree?

As with other custody disputes, if the parties are unable to agree regarding the child(ren)’s means of school attendance, the matter can be submitted to the Court and the Court will decide. Parties who are unable to agree should seek judicial intervention as soon as possible to achieve a judicial determination prior to school deadlines and to avoid significant disruption to the children’s education.

As with any other custody determination, the Court will decide whether remote or in-person school attendance serves the best interests of the children.

Keep in mind that an issue of means of school attendance is a legal custody issue, which does not change a physical custody schedule. Therefore a Court will not order modification of the physical custody schedule simply to address the issue of the child’s means of school attendance.

If you believe certain adjustments must be made to your shared custody schedule to facilitate the child’s means of school attendance and you seek to modify your physical custody schedule, you will need to file a petition for modification for the court to consider a request for changes to the current physical custody schedule. Contact a family law attorney today to discuss your options.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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