CUSTODY ISSUES IN THE SCHOOL SETTING
(excerpts from Caplan and Earnest, Susan S. Schermerhorn, Esq) The following are guidelines to help you when custody issues arise. However, if you need more direction beyond these basics, please contact the Office of Legal Counsel, at (303) 245-5903. I. CONFIDENTIALITY/DISCLOSURE OF STUDENT RECORDS A. The Parent’s Right
Applicable federal (Family Educational Rights and Privacy Act, “FERPA”) and state (Colorado Open Records Act) statutes give parents of children under the age of 18 the unequivocal right to access the educational records of their children. 1. Educational records are defined broadly as records, files, documents and other materials maintained by a school which contain information directly related to a student. 2. “Parent” includes a parent, guardian, or individual acting as a parent of a student in the absence of the parent or guardian. This usually includes foster parents. 3. Unless a stepparent, grandparent or other relative is within one of the categories of definition (i.e., a natural or adoptive parent, legal guardian, or individual acting as a parent in the absence of a parent or guardian), they are not entitled to access student records without the prior, written consent of a “true” parent. B. The Noncustodial Parent
A noncustodial parent generally enjoys the same rights as a custodial parent concerning access to the child’s educational records. 1. Federal regulations provide that a school district may presume that a parent has the authority to exercise the rights to access the educational record unless the school district has been provided with evidence that there is a court order to the contrary. A legal document indicating that one particular parent has “custody” of the child does not mean it is evidence to the contrary; “custody”, by itself, merely establishes where a child is to live and, sometimes, specifies the duties of the parent with whom the child is to live. 2. It is the responsibility of the custodial parent, or that parent who is seeking to prevent the other parent’s access to educational records, to provide a court order specifically prohibiting the other parent’s access to educational records or removing that parent’s right to receive knowledge about the child’s education.
3. The listed address for the child is part of the educational record and, therefore, is accessible to the requesting parent, whether custodial or not, along with all other parts of the records unless you have a court order to the contrary. Before you release it, however, go on to #4. 4. If the custodial parent has expressed concerns regarding the noncustodial parent’s access to the student’s address or other information contained in the educational record, the school district should first inform the custodial parent that access has been requested prior to granting that access so that the custodial parent may immediately seek legal assistance in obtaining the necessary court orders, if appropriate. 5. In joint custody situations, decisions regarding the health, education and welfare of the child are to be made jointly. However, the parents are required to submit a written plan to the court resolving their arrangements concerning the child’s education, among other things. Make the parties provide a copy of this plan before you make decisions on the various issues that may arise. II. VISITATION DURING THE SCHOOL DAY/RELEASING THE STUDENT AT THE END OF THE SCHOOL DAY A. Guidelines for Visitation
The following guidelines for school officials may prove helpful when a noncustodial parent wishes to visit with a student during the course of a school day. 1. The first obligation of the school is to the child. The student’s time during the day is regarded as his or her own. Please refer to Board Policy KK for further direction and clarification. 2. Indicate to the requesting parent that the school district strongly discourages such visits at school. 3. If the noncustodial parent indicates that he or she has a right to visitation at the time requested pursuant to a court order, the school may and should require that the legal document clearly stating that right be produced for examination prior to any decision. 4. If no legal document exists giving the noncustodial parent the right to visitation during school hours, the parent should only be allowed the visitation if the custodial parent grants permission. Ideally, such permission should be in writing and the signature verified by telephone confirmation; alternatively, telephone permission may be solicited and acted upon if the custodial parent is known to the school official soliciting that permission.
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5. Such visits, if permitted, should take place in a location that can be monitored by a school official. B. Releasing the Student
Requests for release of a student to a noncustodial parent or other unknown party should be made pursuant to the following: 1. The “best interests of the child” must be the overriding standard – school officials are on the child’s side here. 2. Establish a policy or rule that no child shall be taken from a class or otherwise released during school hours to a noncustodial parent or other unknown party. 3. Notify the custodial parent or guardian and get permission prior to release. If permission is denied or not ascertainable, do not release the child. 4. If permission is granted, meet privately with the child before releasing him or her to ascertain that the student is comfortable in leaving with that party. 5. Obtain current positive identification, telephone numbers, and addresses of the person wishing for the student to be released. III. COURT ORDERS AND COURT INVOLVEMENT A. Divorce Decrees
In any Colorado decree concerning the dissolution of a marriage, there must be official court documents establishing which parent has custody. 1. parent. 2. Unless the custody decree specifies otherwise, the custodial parent has the authority to determine the child’s upbringing, including his or her education and health. 3. Custody decrees from out-of-state courts are recognized and enforced in Colorado. 4. Often, temporary custody orders are issued but later superseded or modified. The latest document controls. The school’s primary responsibility is to the child and the custodial
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B.
Surrogate Parents
In special education matters, a “surrogate parent” must be appointed for the purpose of representing the student in all educational decision-making processes pertaining to the identification, evaluation and educational placement of the child in the following situations: 1. Parental rights have been terminated by the courts and the student with disabilities has not been legally adopted. 2. Custody has been awarded to the Dept. of Social Services by the courts, except where the student has been placed in the home of the student’s relative who can then act as a guardian for that student. 3. The student has been committed to the Division of Youth Services and the parents of the student are unknown. 4. Parents or guardians of the student are unknown and custody has not been awarded to the Dept. of Social Services. 5. The student is a legally emancipated minor.
6. The student does not have a guardian ad litem with authority to make educational decisions. The surrogate parent then acts as an individual acting as a parent of a student in the absence of a parent and is entitled to those rights outlined previously. C. Custody Disputes
In custody battles, students’ teachers become an important source of information to the parties and to the court in determining what is in the best interests of the child. To avoid the appearance of “taking sides” for or against one party, it is good practice to require subpoenas to be issued before school officials offer testimony in custody cases. (See “Responding to a Subpoena-Information” on the BVSD website). Courts have the power to conduct investigations through their own probation departments or through any county or district welfare departments. Parents who have not relinquished all legal rights to a child have the right to access school records. If someone other than a parent is seeking information or records, the person’s authority should be ascertained. D. Missing Children
If suspicions are aroused concerning the possibility of a child’s improper removal from a custodial situation, contact can be made immediately with the Missing Children Project, Colorado Bureau of Investigation (303-239-4251). It assists the 4
Project if the caller can supply the child’s name and date of birth. The Project may also be contacted for assistance or referral concerning other issues involving children in nontraditional family situations. IV. COMMUNICATIONS ISSUES The school district may choose to conduct its formal communications only with the custodial parent. A. Communications w/Custodial and Noncustodial Parents
School districts need only send information concerning conferences and other activities involving the child, as well as specific information concerning the child’s progress, to the custodial parent. If the noncustodial parent retains legal custody and requests that such information also be sent to that parent, the school district may do so if it wishes and if no court order to the contrary is presented by the custodial parent. Absent a court order, you are not required to provide information to both parents. B. Joint Custody
In joint custodial situations, the school district may ask the parents to select one or the other parent as the primary contact for school conferences, other notices and emergencies. C. Mail to School
Should letters from a noncustodial parent be mailed to a student at the school address, the school may deliver the mailed item to the student if it has a general practice of receiving and delivering mail to students. If a general practice exists to the contrary, or if the custodial parent requests that letters not be delivered to a specific student, the school could proceed as follows: 1. Send the letter back, unopened, accompanied by a letter from the school official explaining that it is the best interest of the child for the school district not to become involved, that family matters should be sent to the child in care of the child’s home address, and that the school requests cooperation in this matter. 2. Subsequent letters should be refused at the school or immediately returned unopened.
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