The single most contentious issue I’m seeing in my practice right now is remote vs. in-person learning. I am not exaggerating when I say that virtually no two parents in the midst of a divorce agree on it.

I suppose I shouldn’t be surprised. Kellyanne Conway, who survived three and a half years in the most tumultuous presidential administration in history—with a husband who is a fierce political adversary, to boot–was finally defeated by, you guessed it, remote learning! She wrote in her resignation letter, “As millions of parents nationwide know, kids ‘doing school from home’ requires a level of attention and vigilance that is as unusual as these times.” Adding, “for now, it will be less drama, more mama.” Not all parents have that luxury, of course, but that’s another story.

I won’t bore you with a list of the pros and cons of remote learning. You can go to a dozen websites for that. Let’s just be honest. Any teacher or student will tell you that distance learning is clearly inferior to being in the classroom. Its only virtue—admittedly a huge one—is safety. The debate over pros and cons merely obscures the two issues couples are actually arguing about.

The first is risk tolerance. As Dr. Elisabeth Rosenthal wrote recently in The New York Times, antibiotics and antiviral treatments mean that most Americans alive today have never had to deal with the specter of death or serious illness from infectious diseases. They have never been forced to make a self-assessment of their risk tolerance. “So our fear is enormous,” she writes, “and our risk tolerance for exposure is just about zero.”

What I’m observing among my clients is that, not surprisingly, couples have wildly different levels of risk tolerance. It’s probably one of the things that brought them to my office in the first place. One parent believes the children should not go outside at all. The other thinks that the benefits of fresh air and a more “normal” life outweigh the risks. One parent is terrified that the child will catch COVID or, just as frightening, bring it home and infect them and other family members. The other believes the child should go to school so as not to fall behind in their education and lose the opportunity to be socialized.

The problem is exacerbated by uncertainty. COVID-19 is a new disease. We are just now learning how it is spread and by whom. At first, scientists believed that young children didn’t catch COVID at all and that they couldn’t transmit it to others. Now we know that while their symptoms may be mild or nonexistent, they may harbor levels of the virus that equal or exceed that of adults. This can pose a particular dilemma for the adults they live with who are in high-risk groups.

Furthermore, there is the troubling issue of multisystem inflammatory syndrome (MIS-C) in children and adolescents. The relationship to COVID-19 is unknown and still being explored. While the numbers are small, they are not nonexistent. Again, risk tolerance.

The second issue is the wrench thrown into custodial arrangements by the pandemic. COVID has wreaked havoc on the elaborately worked-out scenarios devised with my clients to cover every eventuality—except something that has never happened before!

As much as the custodial parent might want to be a 24/7 childcare provider, breadwinner, and teacher rolled into one, it simply isn’t possible. I am seeing a level of panic I’ve never witnessed before in some of my clients, who have been pushed to the breaking point by conflicting and unrelenting demands placed on them by months of isolation with no relief in sight.

For most of them, the trajectory of the school year is still uncertain, with some students in hybrid learning for now, some fully remote, some attending full days, and all at the mercy of the percentage of positive tests in their area.

Childcare arrangements have been upended, and while many parents have been working from home for the most part, some are now tentatively venturing back to the office. They feel guilty about alternately parking their children in front of the television and trying to supervise remote learning while participating in Zoom conference calls. Enter, sometimes, the noncustodial parent, newly out of work. He or she is available and wants to take the kids. It makes sense for everyone, right? Wrong. They can’t agree on anything. And shouldn’t they be looking for work? 

Unlike many other situations where parents can’t decide what is in the best interest of the child, the courts will not step in here. The courts have determined that this is a parental decision and outside the court’s authority. The furthest the court will go is to decide which parent gets to make the decision about whether the child physically goes to school or engages in remote learning at home.

The problem for parents is that there is so much fear permeating this situation. Fear of the unknown. Fear of the future. Fear of illness, of job loss, of loss of control. And what is the most common human response to fear? Anger! According to David H. Rosmarin, the assistant professor of psychology in Harvard Medical School’s Department of Psychiatry and a clinician at McLean Hospital, “When we’re aggressive, we don’t have to show vulnerability to other people.” If we’re screaming at our ex-spouse, we believe we can express what we need while still appearing strong.

But the fact is that anger blurs your ability to think clearly and creates a spiral of attack and withdraw and counterattack.  As Rosmarin says, “Anger puts the responsibility on the other person.” And in order to solve difficult problems that involve your children, you need to take at least some responsibility for yourself.

Obviously, divorce is very often an adversarial process, and you need to protect yourself, your children, and your bottom line. But you also need to be honest with yourself (and your lawyer) about your needs and limitations. The welfare of the children you share with your ex or soon-to-be-ex spouse should be the one thing the two of you can agree on, even if you disagree about what that actually looks like.

This article was first published in the November 2020 issue of Westchester Lawyer Magazine.