Can My Ex Say No to Virtual Learning?
With the on-going pandemic concerns and the upcoming vaccination roll out, many schools are now offering a choice between in-person and virtual learning for the foreseeable future. This is perhaps a blessing in disguise for many students (albeit, the minority) who have flourished in the homeschool environment, prompting their parents to take a serious look at utilizing virtual learning going forward. But what if you and your co-parent disagree on your child’s education needs? Can your ex say no to virtual learning?
Who Makes the Decision?
Legal custodians (i.e., the parents or guardians with legal custody) are entitled to make major decisions regarding a child’s upbringing, such as school enrollment and medical treatment. Major decisions made by legal custodians are distinguished from routine decisions made by the parent exercising parenting time, such as what the child will eat for lunch, how much screen time they get after school, etc.
If you have sole legal custody, then the decision of in-person versus virtual learning for your child is completely up to you. You may choose to honor the other parent’s wishes but are not legally obligated to do so. If you and the other parent share joint legal custody, however, then the enrollment decision for your child must be a shared one.
What if We Disagree?
If the parties share joint legal custody but cannot agree on major decisions, such as important school-related decisions (i.e., in-person vs. virtual, private vs. public, homeschool vs. institution), then the party requesting a school change must file a motion and prove in an evidentiary hearing that the change is in the child’s best interests. This is known in the legal community as a Lombardo hearing.
It is important to note that at this time, Michigan family courts have indicated that in-person learning is the default. Therefore, the burden of proof would likely be on the parent wanting to enroll the child in virtual learning. Please consult your attorney for the most up-to-date information.
The burden of proof will then depend on whether there is an established custodial environment (often referred to as the “ECE”) and whether the proposal changes that environment. If the proposal changes that environment, the standard is clear and convincing evidence (harder to prove); if not, the standard is a preponderance of the evidence (somewhat easier to prove).
The best interest factors are the same that are used in a custody determination, but in the context of the proposed school change. For example:
If the child is of adequate age, which schooling option do they prefer?
Which parent does the child go to when they have a problem at school, is ill, or needs help with homework?
Which parent participates in school-related activities?
Which parent spends more hours per day with the child?
If the child has special needs, which parent can best take care of and help with the needs?
If the school is private, which parent has the better resources to pay for the school?
It is important to note here that every case is fact specific, so arguments must be tailored to the specific facts of the case. In talking to your attorney, be sure to outline the reasons and evidence why you believe the school option is in your child’s best interests, and why the other parent is either wrong or not seeing the whole picture.
We Can Help
Don’t wait until the school enrollment period has passed. Call the Bloomfield Family Law Firm for an immediate consultation with a highly skilled attorney regarding these and other custody-related matters.
