Posted November 13, 2020
Despite a recent rise in coronavirus cases across the State of New Jersey, Governor Phil Murphy has now stated that he has no immediate plans to order schools to close. Therefore, Executive Order 175 remains in full force and effect. Execute Order 175 expressly delegates the decision whether to provide in-person instruction, full-time remote instruction, or a combination of both (hybrid instruction) to local school districts. Additionally, pursuant to guidance from the New Jersey Department of Education, parents/guardians also have the option of requesting full-time remote instruction, even if their school district is offering in-person or hybrid instruction.
For those parents who are divorced or separated, the question becomes who is entitled to make the decision whether their child should participate in an in-person or hybrid program or continue exclusively with remote education. In most cases in New Jersey, parents share joint “legal custody,” meaning the shared authority and responsibility to participate in major decisions regarding the child. In cases of joint legal custody, both parents stand on equal ground in making these major decisions. New Jersey Courts consider decisions related to a child’s health, education, religion, and general welfare to be major decisions, thereby requiring the participation of both parents.
The decision to return a child to school for any form of in-person instruction is certainly a major decision directly pertaining to the education of the child. Additionally, given the current pandemic and the spike in coronavirus cases, in-person instruction also raises issues related to the child’s health and general welfare. In short, a decision to return a child to in-person instruction requires the input of both parents. Ideally, the parties can effectively co-parent and reach an amicable resolution as to whether returning to in-person learning is in the child’s best interests.
In cases where parents cannot agree whether a child should return to school, a Family Court Judge sitting in the Superior Court of New Jersey will have the final say. We anticipate this issue will continue to arise in many cases as more schools offer hybrid programs and expect the Courts will see a significant increase in emergent applications on this issue.
In deciding whether the child should return to in-person instruction, Courts will undertake a fact-sensitive analysis to determine what method of education is in the child’s best interests. Every case is different, and the specific circumstances of each case will be the deciding factor for the Court. A non-comprehensive list of issues Judges may consider includes the child’s health and predisposition to illness, the child’s school performance during remote learning, social consequences from remaining in remote learning, the financial impact on the parents in the event they cannot work and must stay home and supervise the child, the health of the parents and others in the household, the specific plan set forth by the district, etc.
Each case that comes before the Court is different and the Court will weigh the totality of the circumstances in deciding the appropriate educational arrangement. In the event there is a dispute between parents as to a child’s return to school and the issue cannot be resolved amicably, it is important to consult with a family law attorney.
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