Schools & Shared Joint Custody in a Pandemic – Which Parent Gets to Choose?

The COVID-19/coronavirus pandemic has made already tough issues, such as joint child custody decisions, even more complicated. As a parent, your number one concern is keeping your child safe. If you share legal custody and decision-making powers with your ex-spouse, however, choices such as whether your child returns to school this fall will not be entirely up to you. You may need a family attorney to help you understand your options as a parent in this predicament.

Will Orange County Public Schools Be Open in Fall 2020?

When and how schools in Orange County, California will reopen remains to be seen. It is a controversial topic that involves an ongoing lawsuit against state governor Gavin Newsom, who passed school closure orders. Gov. Newsom issued a rule requiring schools in counties that the state is monitoring for high rates of COVID-19 to remain closed until further notice. The Orange County Board of Education voted to bring a lawsuit against the governor in the hopes of reopening these campuses.

As of August 2020, Orange County schools – as well as schools in other high-risk counties in California – will remain closed to students come the start of what would be the fall term, under an order by the governor. Other schools in California may reopen as long as they obey Gov. Newsom’s Pandemic Plan. This plan includes mask requirements for in-person schooling, physical distancing measures, regular student COVID-19 testing, contact tracing for schoolwide breakouts and an emphasis on distance learning. If the lawsuit against the governor succeeds, however, Orange County schools may reopen for in-person learning sooner rather than later.

Child Custody, COVID-19 and School Enrollment Decisions

It is a time of great uncertainty for parents with school-aged children. The novel coronavirus has led to thousands of parents fearing for the lives of their children when considering going back to school. The Centers for Disease Control and Prevention currently holds that while pediatric cases of COVID-19 may be less severe than adult cases, physicians have reported severe outcomes in children – including three deaths (as of publication). This is enough to cause concern among parents when considering whether or not to send children back to reopened schools. Some parents may believe it is safe enough to send kids back to school, while others may push for homeschooling or distance learning.

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Primary Custody vs. Joint Custody – Who Gets to Decide What’s Best for a Child?

If you and the parent of your school-aged child are divorced, you may need assistance from a lawyer to understand which one of you gets to make the child’s education decisions during the pandemic. The first question will be whether you have primary or joint custody over your child. Past case law in California sets a precedent that family courts generally favor the will of the parent with primary physical custody of the child if both have legal custody. If the parents share equal joint custody, however, the matter of school enrollment can be more complicated.

With joint child custody in California, the parents may have to take the issue to court for a judge to decide the outcome. A judge will assess the details of the case to determine whether the child should return to school. Unfortunately, court systems are currently backed up and overburdened due to the coronavirus. It may take longer than usual to receive a hearing before a judge. Even if it takes a long time, though, you and your spouse should not resort to leaving the decision up to the child. This can exacerbate existing challenges between you and your spouse.

If you and your ex-spouse were never married, and neither has legal custody over the child, a school enrollment decision will typically go to the parent whose name is on the child’s birth certificate. If both of your names are on the certificate, the decision may go to the parent that contacts the school first. Otherwise, the matter may end up before a judge. A child’s school enrollment is a complicated issue during the COVID-19 pandemic. As a parent who is sharing custody, contact an attorney for assistance with your decision.