Coronavirus, Family Law, and School
This article was last updated January 28, 2021.
Because the pandemic is unprecedented, your court orders may not directly address which parent has the right to make decisions about whether the child should participate in school remotely or in person, or about other new issues that have come up due to the pandemic.
If parents disagree about sending their child to school in person or online, it is best to try to reach an agreement. If you cannot agree, you will want to read your order carefully. Sometimes an order will give one parent the right to make decisions about the child’s education. If your order does not do this, you can file a suit to modify your court orders to give the right to make decisions about the child’s education to just one parent. Read Changing a Custody, Visitation, or Child Support Order.
But before filing, it may be best to talk with the other parent about your concerns, and try to work out a solution that lets the family stay safe and healthy.
These resources might help:
Note that the coronavirus crisis is unprecedented, so the law may not be settled.
Many questions about school schedules during the pandemic may be unresolved—for example, what do you do if your orders say you're supposed to pick up your child from school after school, but school is now virtual?
The answer: Read your court orders, and pay attention to what your school district is doing.
Unless your court orders say something different, “school” means the elementary or secondary school in which the child is enrolled or, if the child is not enrolled in an elementary or secondary school, the public school district in which the child primarily resides. (See Texas Family Code 153.3101). So that means that the school district's calendar may control even if your child is homeschooled or in a "learning pod." Be mindful of your school district's requirements no matter what you decide.
If you have a standard possession order with joint managing conservatorship, usually one parent has the right to determine the child's primary residence. So during the school week, the parent who has the right to decide where the child lives would have the right of possession. Your court orders (such as a divorce decree, order in suit affecting the parent-child relationship, or order establishing paternity) explain who is supposed to have the child and when. But you are (usually) free to agree to other arrangements.
The Texas Supreme Court has issued several emergency orders saying that if you are trying to figure out custody and visitation during the coronavirus crisis, the existing trial court order controls in all instances. Visitation schedules (such as where the child is supposed to be on holidays) will depend in part on your school district's plans. Pay attention to your school district's announcements.
In the case of disagreement, you might have to go back to court. Make sure your school knows about any changes to your court orders. Their role is not to make decisions for you.
Because the pandemic is unprecedented, it is unlikely your court orders address this. Most of the time, both parents will be joint managing conservators, giving them equal decisionmaking rights over the child’s education.
Usually, custody orders in Texas will set out the parents’ rights to make decisions about the child’s education. Take a close look at yours. The rights and duties are typically allocated equally—but the court can specify that certain parental rights and duties can be exercised (see Texas Family Code 153.071):
- by each parent independently;
- by the joint agreement of the parents; or
- exclusively by one parent.
You can create court orders that divide up the rights to make decisions about certain aspects of the child’s education. For example, one parent could have the exclusive right to make decisions involving special education, school counseling, and whether the child is promoted or held back. The other could have the exclusive right to make other decisions about education.
The orders could also spell out what to do if the parents cannot agree. For example, they could be required to seek mediation.
Talk to a lawyer if you need help understanding your orders. Hire a lawyer if you need help modifying the orders—because you will need help if you are trying to modify your rights and duties and the other parent does not agree.
Yes, if your order does not give one parent the right to make decisions about education, you can file in court to try to modify your orders. For more information, read Changing a Custody, Visitation or Child Support Order. There are modification forms on TexasLawHelp for agreed cases and defaults (cases where the other parent isn't going to participate): (Modification) I need to change a custody, visitation, or support order.
When both parents do not agree about changes to the order, it is a good idea to hire a lawyer to help you with the process. Start with TexasLawHelp’s Legal Help Finder tool. If you cannot afford to hire a lawyer, consider limited scope legal representation. If you end up having to draft your own paperwork because the forms and instructions on TexasLawHelp aren't right for your situation, the Harris County Law Library offers a presentation on finding and formatting legal forms, and legal research guides in specific topic areas (including family law). But, you should have a lawyer review anything you write before you file it.
Learning pods have been a common practice in homeschooling. But during the COVID-19 crisis, you must also consider state and local orders about quarantines, masks, and limits on the size of gatherings to make sure that your learning pod follows all of these rules. See My city or county has issued a "shelter-in-place" or "stay-at-home" order. What does that mean?
If you are considering an alternative school arrangement, the Texas Education Agency has information about homeschooling. Generally, children must be enrolled in school if they are between ages 6 and 19. Private schools are allowed under Texas law, and the Texas Supreme Court has held that homeschooling is allowed.
Although parents have broad rights to make decisions about how their children are educated, this is almost always a decision you should make with the other parent. You have the duty to support your child—and that includes providing them with food, shelter, clothing, medical and dental care, and education.
Every court order is different, but generally the other parent cannot un-enroll a child from school.
Most court orders will give you the right to discuss where your child will go to school, even if you do not have the right to make decisions about education. Each parent has the duty to support your child—and that includes providing them with food, shelter, clothing, medical and dental care, and education.
Depending on what your court order says, if the other takes too long to tell you they moved the child to another school, you may be able to file an enforcement action against them. But your court orders mght say something different, so reading your court orders is the first step in answering this question.
Children can still enroll in school even if they are unhoused or temporarily staying somewhere else. The Texas Education Agency offers resources for such students here. Whether or not a child is unhoused, they have the right to be in school under a federal law called the McKinney-Vento Act.
Learn more at Education of Homeless Students: Information and Answers.