The Road Back to School Plan

When the world essentially shut down in March and schools were closed, parents throughout New Jersey held onto hope that schools would eventually reopen before the end of the school year. With every passing school holiday and milestone, parents muttered under their sleep deprived breaths that homeschooling and virtual learning could possibly continue for another day, week, or month. Even as the situation worsened and virus numbers grew, many parents hoped for schools to reopen by sheer will. After approximately two months of schools being closed, however, it became clear that the “new normal” of homeschooling would continue until the end of the school year. Even when that moment arrived, parents confidently presumed that they would not have to do this again and that schools would not miss a beat in fully reopening for the 2020-21 academic year.

Summer offered some level of reprieve as camps and day care providers opened with what were deemed appropriate safeguards. Even under those situations, however, the virus could not be entirely avoided as certain camps/care providers were forced to quarantine children and counselors and parents were understandably hesitant to continue having their children attend. For those parents who work full-time, the situation was and remains even harder to contemplate.

Back-to-school is now looming as we near the end of August and are again faced with the same situation faced back in March – what to do about school. This has proven to be an incredibly divisive and exhausting issue, especially for divorcing families faced with making very difficult decisions for the best interests of their children. Governor Murphy’s most recent Executive Order provides that New Jersey schools can open for in-person instruction provided they can meet critical health and safety protocols, under “The Road Back” Plan. What does that mean?


Executive Order 175 provides, in pertinent part:

  • Districts are required to certify to DOE that they can meet the health and safety protocols outlined in the Order, and further detailed in the “Road Back,” before resuming in-person instruction. Private school districts will also be required to submit this certification.
  • Districts that can meet the health and safety protocols shall open to students for in-person instruction in the fall.
  • Even if school buildings are open for in-person instruction on the first day of the 2020-2021 school year, districts must provide a remote learning option for parents or guardians who request it for their children.
  • Districts unable to adequately meet health and safety reopening protocols must provide remote instruction to all students. These districts are required to submit documentation to DOE detailing which standard(s) the district is unable to satisfy, the anticipated efforts that will be taken to satisfy the standard(s), and a date by which the school anticipates resuming in-person instruction.

Not withstanding the sheer impossibility of determining what is the best option, the current crisis of “to send or not to send” or how to juggle virtual learning, work and what may already contentious custody related issues in divorce and post judgment matters has created a literal minefield. Judges are constantly being tasked with determining what is right for a child where the parents may each reasonably disagree as to what is the right decision.

Unfortunately, there are no easy answers. Since Executive Order 175 was most recently signed, school districts that were initially providing hybrid learning (part virtual, part in class) have started to now trend towards all remote learning. Scotch Plans, Newark and Fair Lawn school districts, to name a few, have already switched from (some) in person to all remote learning. Your school district may be next. Alternatively, you may live in a district where your school will continue to offer both in person and remote learning. What is the right decision? What do you do if you are a working parent, you (or someone in your household) is immunocompromised, or you live in a multi-generational household? There are no easy answers and, as we have experienced, parents are usually unwilling to relent in their respective positions and judges are faced with making the final decision.

Here are a couple of tips to assist divorcing or divorced parents in navigating these issues:

Preparation

If you are in the midst of a contentious divorce or custody battle, these are issues that you should not now be addressing for the first time with each other. Time is of the essence. While coparenting is oftentimes difficult, this “hot button” issue may put parents at even greater odds with each other. Both parents need to be on the same page as to whether they are sending their child to school or electing remote learning – in other words, one parent cannot just simply enroll a child to attend or make the decision unilaterally. While you may believe that you are right in your belief as to what should occur, this is not a decision that can be made alone.

If you are already divorced, carefully review your Agreement to determine who has the authority to make educational decisions. Typically, in a joint legal custody context, both parents have equal say in such a decision. Many agreements provide a mechanism for resolving disputes before either party can seek court intervention, such as a mediation clause for dispute resolution (very common) or that the Parent of Primary Residence has the final say in such decisions (very uncommon).

In either scenario, preparation is key. A parent should be able to show why one option is optimal over the other, whether it is for health concerns or because of childcare/work-related issues. If a parent is available to watch the children, this should be brought to the attention of the mediator or trial judge addressing the matter. Address any other relevant factors involved, such as the child living in a in a multi-generational home or with an immunocompromised family member (at one or both parents’ homes). Provide detail and analysis as to the safety protocols being implemented by the school to support your position as to whether the protocols are adequate/inadequate based on your specific set of facts and circumstances. Also provide detail as to your own work schedule, the other parent’s availability (or lack thereof), and any other relevant details.

If You Cannot Agree, Be Proactive

While an amicable agreement, which usually involves some level of compromise by both sides, is ideal, inevitably parents will not always agree. If that is the case, get that mediation scheduled, file that application and do whatever is necessary to get the issue taken care of immediately. If parents cannot reach a consensus, there are many options including mediation or an application to the Court (on an emergent basis or otherwise – with the timing at issue at this point in August, an emergent application may be necessary). Of these options, it is likely more cost-conscious and financially prudent to attend mediation and negotiate/resolve the issue. Filing a motion remains an option, but with the amount of time it will take for a court to address the issue school will likely already be underway in some capacity. One downside to litigation, as is always the case is that while you may believe to your core that you are right and the other party is wrong, there is no guarantee on the result once the decision is in the hands of a stranger in a black robe.

All things being considered, gather your facts and be ready to show why the plan you are seeking to adopt is the best for your child. Provide the court with as much detail and reasonable options as possible, rather than just demanding that your sole desired outcome is the only one that should occur.

Governor Murphy’s “Road Back to School” Plan has provided additional challenges to our already challenging world, but that does not mean that you cannot devise a course of action that is right for you and your family. This pandemic is challenging enough. Whether you are a working parent, stay at home parent, or an immunocompromised parent, every answer presents its own set of benefits and difficulties. At Ziegler, Zemsky & Resnick, we will help you prepare a course of action to help you achieve an outcome that is the best interests of all involved.

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