Homeschool and Custody Amid COVID-19

We’ve written about homeschooling before, because it has always been an option available to parents, and one that can have an impact on a custody and visitation case. Even though homeschooling may not be many parents first choice (myself included), all of the issues related to coronavirus and COVID-19 have made homeschool a daily reality for a lot of families.

And it may continue to be a party of everyday life for a really long time. It’s hard to say; there’s no vaccination, and, until there is, it may be that some social distancing measures will be place for the foreseeable future.

Will schools open back up? Who knows? And, even if they do, there may be some really big changes made to the way schools are run. And, for as long as this virus is a part of everyday conversation, it’s going to be a factor in how schools are run. And maybe it’s not even a question of how schools are run, it’s a question about our personal choices, and whether we’ll send our kids to schools that can’t guarantee that our kids will be safe. After all, its hard for kids, especially little ones, to social distance. And even though older ones may understand better, in many ways they’re even harder to control.

What risks can we tolerate? What policies will we have to tolerate? Will homeschooling become a bigger part of many families day to day lives? And how will these changes impact custody and visitation?

In some ways, I can’t answer those questions. The courts are are only taking super limited cases (mostly emergencies, and some non emergencies) pursuant to the most recent Supreme Court order, and, even though some non emergency hearings are allowed, we’re not really getting much in front of any judges. We certainly haven’t had any full custody trials.

If you’re thinking that you want to homeschool your kids, you’re not alone. (Or if you feel like you have to homeschool your kids, even if it’s the last thing you’d really prefer to do, you’re definitely not alone.)

Things we’ve never thought about before, like how many people we actually come into contact with just from doing basic things like going to work or the grocery store, are starting to inform our day to day decisions in unprecedented ways. I, for one, never though that homeschooling would be even the remotest consideration for me, personally. My mom was a teacher – I KNOW how hard it is!

So, what changes have to be made to your custody and visitation arrangement if you homeschool?

Maybe none. Maybe a lot.

It depends on what your current custody and visitation arrangement is now, how well your children are coping, and whether your child’s father is willing to shoulder his portion of the responsibility of homeschooling.

Like any situation, it’s going to depend on how you’re sharing custody. If you have the majority of the time already, it might be easier to commit to homeschooling full time, but if you share 50/50, you’ll need more of a buy in from him – or a change in custody to reflect the new situation.

What if he opposes it – a change in custody, or a change to mostly homeschooling?

This is where the whole legal and physical custody thing comes in to play.

Legal custody

Legal custody refers to the right to make three types of decisions on behalf of the child – non emergency medical care, religious upbringing, and education.

So, obviously, education is a factor here. And joint legal custody means that the two of you share decision-making abilities relating to the kids. Also obviously, there are two of you – so what happens when you don’t agree? There’s no tie breaker.

Well, there is. The judge is the tie breaker in cases where the parents can’t agree. And judges make decisions based on the best interests of the child factors. So, whether you or your child’s father will “win” the homeschool argument will depend on how you present the factors and, ultimately, what the judge feels is in the child’s best interests.

So, what do you do if you can’t agree? You either homeschool the kids, and wait for him to petition the court, or you keep them enrolled in school and petition the court yourself. It’s probably a good idea to talk to an attorney before you take any drastic steps (like un enrolling the kids from school and homeschooling them yourself over his objection) to make sure that your case is as strong as possible ahead of time. It’s always risky to act first and then leave things in the hands of the judge to resolve later, especially if the judge feels like you’re abusing your power and not effectively coparenting with your child’s other parent.

Physical custody

Physical custody deals with where the child resides. So, if you’re petitioning for a change in custody because of your homeschool arrangement, physical custody is also a factor.

We’ll look first at what your arrangement is now, and whether (and how) it should be changed to accommodate your plans in the future.

Again, though, the “best interests of the child” is the determining factor, and the judge will weigh the ten statutory factors to ultimately make a decision.

It’s complicated! And a lot of things are involved in a decision. The judge will look at why you want to homeschool, the reasonableness, and any accommodations you’re making to allow for your child’s father to be involved, even if he disagrees with the decision to homeschool. The judge will look at your qualifications, how your job will be impacted, and what alterations the school would be making to its day to day operations to make sure that your child is protected.

It’s always the case that a lot of interests are being weighed and balanced and shifted in custody cases, and a case based on homeschooling because of the COVID-19 crisis is no different. To be sure, we’re dealing with different issues than ever before, but that doesn’t mean that these decisions aren’t based on the same law.

Homeschooling is not a new or novel issue, but it is one that will impact custody cases with increased frequency in the coming days and months. If you’re considering not sending the kids back to school, you’re not alone. If you and your child’s father aren’t in agreement about the choices you need to make, though today may be a little premature, there will be judicial outlets in the future to help you make those decisions and to balance the best interests of the children as effectively as possible.

For more information or to talk to a licensed and experienced Virginia divorce and custody attorney, give our office a call at 757-425-5200.

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