As we all navigate the path of living our lives amid a pandemic, those of us who are separated, divorced, or otherwise co-parenting with another parent find ourselves in uncharted territory.   It is rare that a Parenting Plan anticipates unscheduled school breaks, digital learning, suspension of activities, and quarantines.  The first step in the journey is to make sure you are aware of the exact language of your parenting plan regarding the regular school year schedule, breaks from school/holidays, any right of first refusal, and legal custody as it applies to medical and educational decision-making.

All parenting plans provide a basic outline for each parent’s time with the children that reads something like:  “In the absence of an agreement otherwise between the parents, the parenting time schedule shall be . . . .”. You should endeavor to have the type of relationship with your co-parent where you can both let the children’s schedule evolve in a fashion that meets the unique needs of the children and your own life.  In other words, courts encourage and hope that the parents will work together to come up with a schedule that works best.  This is particularly true when faced with a set of events, like a pandemic and related school closings, that were not anticipated at the time the plan was made. 

All metro Atlanta School Districts have suspended in-school learning for a period of time.  Please check your local district to see how the break is classified.  Attached to this article is a listing of the announcements of local districts: Smith+Lake_METRO ATLANTA SCHOOL STATUS_March2020.  Most districts are putting together remote learning options for students during this time.  Many of these seem to be online learning options or assignments made digitally by individual teachers to be turned in remotely by the student. 

The pandemic may significantly impact parenting plans in several areas, including but not limited to, the following: (1) when and where parenting time exchanges will be if school is not in session; (2) how to classify the break from school for purposes of determining who has parenting time with the children and when; (3) what to do if the other parent is not practicing social distancing per CDC guidelines; (4) whether a child will participate in any remote learning options; and (5) how unanticipated childcare expenses will be divided if one or both parents must work outside the home during this time. 

While your Parenting Plan may be specific about some of the above issues, it is probably not specific about an extended and unanticipated leave from school.  While you should consult with an attorney regarding your specific questions, some general guidelines from our attorneys are as follows:

  1. Courts are temporarily closed except as to emergency circumstances, which will likely not include disagreements about how to interpret the parenting plan during this break. As such, there will likely not be an immediate court remedy for disagreements or potential contempt such that you should try your best to work out an agreement with your co-parent about what to do. 
  2. Your Parenting Plan likely has a provision about when and where the exchange location and time will be if school is out of session.  If not, attempt to agree with the other party about these exchange details going forward.
  3. The break from school should not be simplified as a holiday (e.g., a three-day weekend, teacher workday, or snow day) for which your Parenting Plan may provide instructions. Since children will ideally be receiving educational instruction remotely, there is a good argument that the regular school year schedule applies if you cannot come to an agreement.  This depends greatly on the language of your Parenting Plan and other factors, though, and you should check with an attorney for specific advice.  If your Parenting Plan was entered in Cobb County or Fulton County, the Superior Court judges for those counties have met and provided specific guidance, which you can find here for Cobb County and here for Fulton County.
  4. If your co-parent is not practicing social distancing per expert recommendations and you have final decision-making authority over medical decisions for your child in a joint legal custody arrangement, you should try to consult with your co-parent and come up with an agreement about social distancing methods for both families.  Both parents should also be candid about their family’s potential exposure to COVID-19 so that self-quarantining measures at both households can be taken if needed.  If your co-parent refuses to practice social distancing, that does not give you the authority to deny visitation as final decision-making authority over medical decisions.  You could be found in contempt for this behavior.  At the same time, though, if you withhold parenting time and do not have a history of alienation from the other parent, there may be a good defense to any contempt action brought by your co-parent.  This situation is tricky and you should talk with an attorney about these concerns to see what actions are appropriate under your specific set of circumstances and the best interests of your children.  Ultimately, if you decide to withhold visitation, consider offering makeup parenting time to your co-parent in the future as a show of good faith and so that your children have the usual amount of meaningful parenting time with each parent. 
  5. Whether your children should participate in remote learning options will likely be a decision that the parent with final decision-making authority in the area of education can decide.  Under all joint legal custody decisions, the parents must consult with one another before either parent makes a final decision. In the event the parties disagree, however, the parent with final decision-making authority will be the tie-breaker.  If the tie-breaking parent decides that the child will participate in the educational programs, the other parent has a duty to have the child participate in those programs even during their parenting time and at their home. 
  6. If a parent must pay for unanticipated childcare, you may have a provision in your Parenting Plan or Final Order that details how childcare will be divided.  However, if childcare costs are already estimated and included in your child support worksheet, the unanticipated childcare costs may exceed what is included in your child support worksheet.  If there are no specific instructions in your Parenting Plan or Order, try to come up with an agreement about how these new unanticipated expenses will be divided.  Deducting the cost of childcare from your child support payments may lead to a finding of contempt.   

Our hope is that parents can work together during this difficult time, even if they have a history of high conflict. Remember to get any agreements reached that deviate from your Parenting Plan Order in writing and remember that healthy co-parenting relationships are always in a child’s best interests.  Also please remember that your actions and those of your co-parent during this uncertain time may shine a spotlight on how you each cope with difficult situations – these events could be highlighted in current or future litigation concerning custody. 

If you have specific questions, please feel free to contact one of our attorneys.    

Dawn Smith dsmith@smithfileslaw.com (404) 909-8300

Kristen Files kfiles@smithfileslaw.com (404) 909-8300

Laura Sclafani lsclafani@smithfileslaw.com (404) 909-8300

You can also find additional guidelines from the American Academy of Matrimonial Lawyers (AAML) here and various resources from the Association of Family and Conciliation Courts (AFCC) here.

Smith & Files is a law firm dedicated to assisting individuals and children obtain fair and favorable results in family law matters. Our lawyers bring decades of experience to the issues facing today’s changing families. In addition, the attorneys are seasoned Guardian ad Litems, mediators and state registered arbitrators. Learn more at smithfileslaw.com