School is almost back in New Jersey, and many families are struggling with the decision to allow their children to go back to some type of in-person learning or continue remote. What happens when divorced parents cannot agree? If you have joint legal custody, who decides?
Several months ago, when COVID-19 first occurred, we were dealing with how parenting time would occur in a COVID-19 world. Initially, it was believed to be a 14-day emergency so the initial reaction was to suspend parenting time for 14 days and as long as everyone was healthy, at the end of the 14-days, parenting time would resume and the missed parenting time could be made up later. At first blush, that seemed like a very reasonable way to address the pandemic, the child(ren)’s safety, any exposure that could lead to symptoms within the incubation period and parenting time.
As the pandemic unfolded, though, we soon realized it would not be a 14-day event, things would not go back to “the way it was” in two weeks’ time and suspending parenting time indefinitely “until the pandemic was over” was not realistic, reasonable or fair to either the parent missing the parenting time indefinitely or the child. Pretty soon we switched our approaches and we moved from temporary suspensions of parenting time to parenting time continuing as ordered unless there was a reason—beyond the new reality of COVID-19—for why it shouldn’t. We had to learn as we went along and things unfolded.
Fast forward to August 2020. Now, just like in March, we have a brand-new issue we are all grappling with and no one is quite sure how to address it just like we weren’t initially sure how to handle parenting time back in March and early April. What do we do about school? With many schools offering both all-remote and hybrid live-plus-remote options, which is better and more importantly, who gets to decide?
Generally speaking, when parents share joint legal custody, the most common form of legal custody in New Jersey, all “major” decisions—medical, health, education, religious, safety and general wellbeing—concerning the parents’ child(ren) are to be made together by both parents with neither parent having more rights or responsibilities than the other. With joint legal custody, the amount of time with each parent (known as “parenting time” or “physical custody”) is irrelevant. It does not matter how much parenting time/physical custody either parent has when it comes to joint decision-making authority.
So here we are, having to decide about schooling for Fall 2020. What do we do? Does Johnny stay home and participate in the all-remote option? Does he participate in the hybrid option and go to school for in-person education according to his school’s plan and do remote learning the rest of the time? What happens if the parents cannot agree and one wants Johnny to take advantage of the live classroom option (as long as it is available) and one wants Johnny to be safe and sound at home and only participate in the remote learning option without any exposure to the live-classroom environment?
In this context, it seems to me (and this is only my opinion) that COVID-19 and schooling presents what I am calling the “SUPER MAJOR Decision”. If the child(ren)’s medical, health, education, religious, safety and general wellbeing all independently constitute “major” decisions for purposes of joint legal custody in New Jersey, surely COVID-19 that encompasses medical, health, education, safety and general wellbeing all in one fell swoop is a “SUPER MAJOR Decision” and not one that either parent should be making alone and certainly not where there is a conflict with the other parent’s opinion on the issue. What happens in the event of a conflict since neither parent’s legal decision-making authority is greater than the others? Well, that is going to depend. The Court will have to be the tie-breaker and how it breaks that tie we can only assume will be highly fact-specific to the circumstances presented both for and against each option. We have yet to see this issue unfold through the Courts though we do have several debates about this topic currently occurring. What we can say for sure, though, is unless there is an agreement on how this issue will be handled between the parents’, the Courts are very likely going to be inundated with emergent applications.
Julie Burick, Esq. is a partner and shareholder with Adinolfi, Lieberman, Burick, Falkenstein, Roberto & Molotsky, PA in Haddonfield, New Jersey. She focuses her practices on all aspects of divorce and family law to include high conflict matters.
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