When thinking about the law, one of the most important considerations is how legal decisions are made. Many times, courts are asked to rule about something that has already happened but has no supporting body of law (i.e. no precedents). Twenty-five years ago, social media was brand new and as it gained influence, there were disagreements leading to new litigation. Today, laws pertaining to social media are fairly well established. Enter COVID-19. This has huge implications in a family law setting – today let’s consider who decides if a child can return to school or not during a global pandemic.

The devil is in the details (unless there aren’t any)

Many custody agreements are written in broad terms, but some contain a level of detail that would put the Internal Revenue Code to shame. I am confident in saying 99.99% of pre-pandemic custody agreements never considered how to settle a disagreement about a child attending school. Prior to March of 2020, there was nothing to discuss – kids either went to school or were home-schooled. Now everything has changed. Consider this real-life scenario:

A divorced couple with an 11-year old son have a divorce decree stating parents will jointly make education decisions, even though the child lives with his mother. There was nothing in the decree about what would happen if they disagreed, but then came COVID-19. At first, remote learning was mandatory so there were no other options, but then the state relaxed its rules. Children now have the option of in-person attendance or remaining remote. The mother, who had witnessed months of Zoom classes, wasn’t convinced it was working and sent the youngster back to school. The father found out, drove to the school and took the child home, stating that the chance of infection was far greater in school and he was unwilling to take the risk. In the end, the school decided that the language in the divorce decree gave the mother the right to decide. If this had been litigated, the outcome would not have been the same because the school’s interpretation would not have been upheld by a judge.

How to head off school conflicts

Some divorced parents might agree to letting the school be the final arbiter of whether their child attends in person or remotely. One problem I see with this transfer of authority is a judge is unlikely to uphold a school’s decision if the other parent challenges it. To avoid needless litigation, parenting orders will need to be much more specific in the post COVID-19 world. These will have to spell out exactly what rights does each parent have pertaining to the education of children. Questions like which school a child attends, who is allowed to pick them up from school, and who can choose remote vs. in-person learning will have to be decided and recorded in advance. There haven’t been a lot of these cases litigated yet, but there will be unless both parents think ahead.

Texas law facilitates the specifying of family obligations

Virtually no pre COVID-19 divorce decrees mentioned how to handle school attendance in a pandemic. Fortunately, Texas law is sufficiently flexible to direct specific responsibilities to one parent or the other. Texas Family Code 153.071 allows the court, or parental agreement, for the exercise of certain parental rights and duties by either each parent independently, by joint parental agreement, or solely by one parent. Court orders can go further into the education process. For example, one parent could have sole responsibility to decide on such things as special education services and counseling. These orders could also pre-determine what happens if the parents disagree.  For example, the parents can agree to make joint decisions and if there is a dispute, the court order will contain a tiebreaker, such as the school counselor for education decisions. If you are in the same situation as my example parents discussed earlier (or are just planning ahead to avoid future problems), a modification of your existing decree will be required. To successfully modify any court order (even if both parties agree), you will definitely need expert representation.

A real can of worms

If you are contemplating or in the process of seeking a divorce, I encourage you to think about the dramatic impact of COVID-19 on custody issues. We’ve been talking about school attendance, but what about visitation, or previously planned trips? If a parent has to cancel a trip due to COVID-19, does he/she get to make it up later or is the opportunity lost forever? What if a child is with one parent when he/she received a positive test result? What if that parent is not the primary caregiver? You can see how this can get messy real quickly.

If you have any questions on existing or future custody orders, give my office a call. The pandemic opened a real can of worms, and we can help you make sense of it all.