Focus

Child Custody Considerations on School Grounds

by Matt Carver

Child custody disputes surface frequently in our school buildings. The nature and intensity of these disputes can lead to frequent trips to the courthouse by parents and school staff alike.

 

When school personnel misunderstand applicable law or fail to review and follow custody court orders, they may unintentionally add to the turmoil. Familiarity with the most common custody issues and pertinent legal considerations can prevent such missteps.

CarverMatt Carver

Records Requests
Determining whether an individual is a parent under the Family Educational Rights and Privacy Act, or FERPA, is essential when custody issues arise regarding education records and student conferences. Under FERPA, a parent is defined as “a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.”

Regardless of a parent’s marital status, schools are required to give full rights under FERPA to either parent, unless the school has been given evidence of a court order, statute or legally binding document that specifically revokes these rights. This means that if an individual meets FERPA’s definition of a parent, another parent may not prevent school officials from providing education records to that individual without first providing a court order or other legal document to that effect.

An essential consideration whenever school staff work through a child custody dispute between parents is this: Ensure staff review and follow the most recent court order in the student’s file. If one of the parents claims the order in the student’s records is out of date, staff should politely ask the parent to provide the school with a copy of the most recent order. The staff also may check with the applicable court to verify the date of the latest order.

Another common dispute relates to the involvement of stepparents or a parent’s significant other. All too frequently, one parent will ask school officials to prevent a stepparent from reviewing education records or attending conferences. This request often goes beyond the parent’s authority. For one, either parent may provide written permission for a stepparent or any other party to review education records or attend a student conference. In other instances, stepparents have the same rights under FERPA as do natural parents, if the stepparent “is present on a day-to-day basis with the natural parent and child and the other parent is absent from that home.”

The same standard would apply for other adults, such as a parent’s significant other, or grandparents living in the student’s home.

Education Decisions
While an individual may cross the relatively low bar to be considered a parent for records review purposes under FERPA, that same individual may not meet the legal threshold for making decisions relating to a student’s education. For instance, the courts may grant sole legal custody to one parent. The other parent still would generally have access to student records but not authority to make education-related decisions.

The trend across most of the country is for courts to grant joint legal custody to both parents, with each sharing in the responsibility to make education-related decisions for their child.

If parents have joint legal custody but are unable to agree on an education decision, school personnel should err on the side of whatever action is in the best interest of the student’s development. While state laws, court opinions or orders may provide more guidance regarding education-related decisions, taking an action in the best interest of the student will put educators in a strong position in most jurisdictions.

The term “joint legal custody” raises another point of common confusion. It does not mean both parents have equal access to a student. The courts often will grant joint legal custody to both parents but provide sole or primary physical custody to one parent, with visitation to the other. When the parent with visitation wishes to spend time with a student during the school day but outside of the visitation hours set in a court order, check with your school district’s legal counsel to learn whether such time with the student is an unlawful extension of visitation.

Another consideration relating to parent involvement in school buildings is whether one or both of the parents are using the school in a game of one-upmanship. While some participation of parents at school is beneficial, in other instances the constant effort by one or both to outdo the other becomes disruptive of the school environment. It is well within the right of school administrators to limit the activities of a parent within the building — whether volunteering in a classroom or eating lunch in the cafeteria. This holds true regardless of whether the parent has primary physical custody of a student or merely visitation rights.

Miscellaneous Requests
In addition to the one-upmanship game, another common issue is the overzealous parent who wishes for the school to send written updates on a student’s educational progress or attendance record on a daily basis. As an alternative to daily updates, consider having staff provide each parent instructions on how to use the district’s online educational tracking software. If your schools or parents are not using such technology, perhaps offer a less frequent progress or attendance update (weekly, biweekly or monthly).

Lastly, remind staff to keep safety considerations at the forefront when working through custody disputes. Whenever a parent has lost her/his temper at a level that makes staff fear an irrational act, encourage staff to contact law enforcement or involve school liaison officers or security guards who may be in the building. In some cases, staff should consider having law enforcement or security on standby in the office during a meeting with parents.

Due to the contentious nature of custody disputes, my final recommendation is to remain as neutral as possible and to involve school legal counsel sooner rather than later when communications between staff and parents won’t resolve an issue.

Matt Carver is director of legal services for the School Administrators of Iowa. E-mail: mcarver@sai-iowa.org