A Difficult Custody Battle

masked child raising hand at school
Aug 11, 2020 | Sara Khaki

Who Gets to Decide if the Kids Go Back to School?

One of the big issues parents have to address this year is a question I certainly never thought I’d have to ask: Will I send my kids back to school this fall?

Whether or not schools will reopen for in-person lessons is a question being asked across the country. Here in Georgia, some school districts are committed to remaining completely virtual while others are letting parents choose between virtual or in-person classes for their kids. This choice has caused a fair amount of tension between divorced couples who are co-parenting together. They have to come to this decision together, which can be difficult if exes don’t agree on the best course of action.

In divorce, custody rights expand beyond physical visitation schedules. There’s also legal custody, which comprises the decision-making rights over a child’s education, medical care, travel, extracurricular activities, and religion. These decision-making rights are often divided up between the parents. Mom may have custody rights for medical care, travel, and religion while Dad has rights for education and extracurricular activities. Right now, we’re still trying to figure out if the decision of whether to send kids back to school or keep them virtual is a medical decision or an education decision.

If there’s a split, where one parent has medical decision-making rights and the other has education decisions, the question of in-person versus virtual education may lead to a custody battle. One parent may insist that it’s a medical decision and they aren’t sending their kids back to school due to health concerns. The other parent could insist that it’s an education decision and that the kids should go back to school because kids learn better in the classroom. We have no real precedence to suggest how these cases could play out, but we predict that a judge may look at the circumstances of each case. If the child has a health condition that puts them at higher risk, then it could be a medical decision. Otherwise, it will likely be an education decision.

Ideally, it won’t come to the courtroom. We encourage our clients to try and communicate with their ex first. The best method around any issue is for the two parents to do everything they can to co-parent together. If you are dealing with a difficult or combative personality then you may need to get attorneys involved, but ideally you will be able to work together and determine what is best for your children. Children will be very aware of what side their parents are on, and if the parents cannot agree, the children might feel guilty about going or not going to school this year. That’s not a feeling we need to put on our children.

These are difficult conversations, but they are conversations all parents need to have right now, whether you’re married or divorced. I honestly don’t know what the right answer is. My husband and I have been having these conversations all summer. Do we hire a tutor? Do we ask Grandma and Grandpa to help? Do we alternate which of us is working each day so the other can do home-schooling? Do we send the kids to private school? There are so many uncertainties and our concerns only compound because our children are involved.

Divorce doesn’t mean the conversations have to be any different than the conversations married couples are having right now. Parents need to communicate and keep their children’s best interests at heart. There are times when going to court may be a necessity, but if you are in a situation where you can communicate, even if that communication isn’t always easy, we encourage you to take that option first. You may have to agree to disagree on some things, but if you can find a happy medium, your family will usually be much better off than having this hashed out in front of a judge.

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