Relocation, Joint Legal Custody, and Summer School

Posted on Jul 5, 2021 by Katie Carter

When mom and dad don’t agree about fundamental things – like summer school – but have a court order awarding them joint legal custody, we often run into problems.

When parents live nearby, summer school isn’t such a challenging issue, even if both parents aren’t on the same page.

For two parents living in the same area, it’s probably less of a concern. If the child needs summer school, the child will go to summer school. It will impact both parent’s parenting time, in the sense that they will have to provide transportation to and from school (or, at least, to and from the bus stop), organize aftercare for a child on the younger side if they both work, help with homework, attend parent/teacher conferences, and so on.

In that sense, I think it’s easy to say that, for two parents who live nearby and share custody on a regular and rotating basis, summer school is a no brainer. Even if one parent DID, for whatever reason, oppose summer school enrollment, it would be a simple matter of having a hearing and presenting the evidence in favor (and against) the child’s enrollment. Since the standard is best interests of the child, I would imagine that if an actual educator was willing to testify to the child’s need to attend, it wouldn’t be difficult for the judge to agree.

That, on its face, is a relatively simple matter.

If one parent or the other has relocated, though, and are coparenting from different states, these joint legal custody disputes can become BIG issues.

When it becomes a problem is when mom and dad live in places that are fairly geographically distant from each other. Relocation is tricky no matter what, but actually “winning” a relocation case and being allowed to move with the child is only one part of the equation. Navigating the co-parenting waters AFTER relocation is equally (if not more) difficult.

“Winning” relocation sets you up for a much more difficult road coparenting with your child’s father.

In these kinds of situations, one parent usually winds up having a school aged child most of the time – because, most of the year, the child is in school and needs stability to attend. The other parent could still, conceivably, have shared custody in the sense that the other parent could have the entire summer, or a majority of the breaks from school, or both. (Remember, to get to shared custody, the non custodial parent only needs 90 days over the course of an entire year!)

When it comes to summer school, that can be a problem. Dad won’t want to give up ALL of his parenting time so the child can attend summer school. Mom will say, “but he NEEDS summer school!” And, so, a conflict is born.

What happens?

The answer is simple: if there’s a court order, it rules until a new court order or agreement between the parties supersedes it.
Well, first thing’s first: if there’s a court order giving dad parenting time over the summer, the court order has to be followed unless and until there’s a different court order (or an agreement between the parties) that supersedes it.

As in so many other cases, your options are, essentially, two: (1) reach a modified agreement between the two of you, or (2) file a petition and let the judge decide.

There are a lot of considerations here, of course, so ultimately what will happen will depend on how those considerations stack up.
Why does the child need summer school? Are there alternative options – like summer school – where dad is? What about a private tutor? What will happen if the child doesn’t attend summer school?

What alternate proposal can you make? If dad doesn’t want to miss his time, how can you give him different but relatively equal time at another point and in another way?

What alternate proposal can dad make? If he doesn’t want the child go to go summer school, how will he help put the child in a position to be successful next year?

Taking away dad’s parenting time in favor of summer school will probably be a nonstarter. Look for alternatives.

I think you’ll both have to tackle these hard questions head on, and see what you can come up with. The court probably won’t be impressed with an argument that ends with, “well, he needs summer school, so dad has to deal with it.” A good argument would include reasonable alternatives that take into account dad’s need to see the child – and the child’s need to be with dad, too.

You’ll be doing yourself a disservice if you don’t consider alternatives and try to find a way to appease dad. Not only because I think it’s easier (and cheaper and better for your overall coparenting relationship) to reach an agreement rather than go to court, but also because I think the judge is going to be looking very seriously at dad’s time and wondering how to make sure the child sees him. After all, most judges these days think that what’s actually in a child’s best interest is sharing time with both parents as much as possible.

Can a child’s poor school performance result in a change in custody?

And, look, I don’t mean to imply that a child’s doing poorly in school is due to some fault of the parent, but I wouldn’t be surprised if dad came in trying to make an argument like that. There’s always the possibility that, in a relocation case, it’ll come back to whether staying with one parent is actually in the child’s best interests. To the extent that there’s evidence that the child isn’t doing well, I do think that opens the door to a discussion about where the child’s best interest is actually addressed best. I don’t think that means custody will necessarily change, but the door is open.

Agreements are better. Easier. Cheaper. More predictable. And less likely to open a can of worms that you didn’t intend to open.
I understand what you’re saying. Your kid needs summer school, and your first – and only – goal is making sure that he gets what he needs. It’s scary to think he could fall further behind, or be retained and be in a class with children a year younger than him. If I were you, I’d be worried too, and I’d also want my kid in summer school if the teachers were telling me that was his best option.

Still, as a coparenting parent, especially when you’re doing it from a distance and under a prior court order, you’re more limited than the average parent.

You’ll want to discuss with dad to see whether there isn’t a compromise, and then do some digging to think even harder about what that compromise might look like. Make it clear to him that your goal is to support his parenting time, not to take it away. Lay all of your concerns for your child on the line. Invite him to participate in a parent/teacher conference, if he hasn’t already, even if he appears by Zoom or FaceTime. Give him a chance to come with you to the right decision.

Joint Legal Custody means that mom and dad have equal decision making power in three areas: (1) non emergency medical care, (2) religious upbringing, and (3) education. If you can’t agree, the judge casts the tiebreaking vote!

If you can’t agree, you may have to litigate – and obviously sooner rather than later. This may be something you could put up on an emergency petition, since it’s school enrollment-related. The court dockets are super backed up, though, so you’d want to get in as quick as you can. You may only have so much head’s up, though, since within the course of the academic year these problems arose, and now you’re however-many-months until summer school starts.

Working with an experienced family law attorney can help you navigate this. For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.