The parenting plans that divorced couples use throughout Texas operate under one big assumption: That school will operate on a normal Monday through Friday schedule throughout the year.

The schedules parents follow, including when parenting times begin and end, as well as where pickups and dropoffs occur, usually pivot around school. As all parents know, the pandemic has called when and how school starts into question, and it’s about to cause all sorts of complications.

One of the biggest ones involves determining whether it’s safe enough to send your child back to school. Ideally, married couples with kids have to determine together what level of risk is acceptable. But what happens with a divorced couple in which one parent wants to keep a kid at home to learn online, and the other parent wants to send the same kid to school?

That’s something that we hope the Texas Supreme Court is about to weigh in on, which is good, because judges could use some guidance from higher courts on a very complex issue. As the Houston Chronicle pointed out in an article a few weeks ago, “The current law has no provision for a circumstance like this. With no precedence in place, dissenting parents will have to go before a judge for a ruling.”

A typical divorce decree will have provisions for what parents can decide on for children under 18, with decisions about education one of those categories. The decree might say a parent can decide independently, or must confer with the other parent first but can still decide, or it might specify which parent has the ultimate say, or the parents have to mutually agree before a decision is made.

If it doesn’t spell out who decides specifically, it could be up to which parent has possession of the child at the time. If a couple is on a week-on, week-off schedule, for example, and Dad wants the child to go to school, the child could conceivably go to school on Dad’s week and stay home and learn online during Mom’s week. But that doesn’t serve anyone particularly well in that scenario. More often the child is left with feeling uneasy about not knowing what will happen each week.

A judge could make a ruling if one parent seeks a modification, of course, and without a current mandated order, that is how parents would need to seek resolution if they dissent and want consistency for the child. Right now in Bexar County, there’s less of a backlog with Zoom court than there was when the pandemic first took hold this past spring. If you filed a motion today, you’d likely be looking at about two weeks to have a case heard. Depending on what your school has planned, you might be able to get a resolution before you’d have to have your child sit in class.

One case I’m working on right now introduces another question: What if your child is playing sports? If the district deems it safe enough for sports to happen, but you don’t want to send your child to school, that could create additional friction. An ex who might otherwise agree with you to keep your child home might push for a return to school to participate in that sport.

A Texas Supreme Court decision would give judges some guidance, and it’s likely that cases coming up after that would lean toward what that court says. For now, though, it’s up to each parent to disclose as much information as possible to help their lawyers argue their cases. If you went on a family vacation with your kids in June, for instance, and you now want to keep your kids from attending school in August, you may have to answer for that vacation in court.

If you went to an area without many cases and took good precautions, it might not work against you. But, if there are Facebook photos of you and your kids without masks in a crowd of beachgoers, a Trump rally, or another setting with lots of people who aren’t social distancing, that could definitely work against the case you’re trying to make.

There’s not one easy answer or one-size-fits-all solution here. If you’re concerned about the health and safety of your kids, and you and your ex aren’t on the same page about school, it may be worth it for you to take it to court. At the Law Office of Lisa A. Vance, we can talk to you about where you might stand in a modification case as well as how to proceed. While we will likely get some indication from the Texas Supreme Court soon, you may not want to wait—and you might ultimately differ from where they stand.