CUSTODY, PARENTING TIME AND ORDERS OF PROTECTION: WHO HAS THE FINAL - - PDF document

CUSTODY, PARENTING TIME AND ORDERS OF PROTECTION: WHO HAS THE FINAL SAY WHEN IT COMES TO OUR STUDENTS? School district employees frequently are presented with family court issues, such as custody, parenting time, guardianship and orders of protection. When one parent provides a court order, schools have to try to determine whether the order is valid, and interpret what the order means.

• Can the parent volunteer in the classroom?
• Visit for lunch?
• Pick the student up from school?
• Participate in parent-teacher conferences?
• What if it isn't during the person's parenting time?
• What if it turns out that there is a more recent order?

Often, there is more to the story than one parent is telling us.

• I. Defining Terms

Arizona defines "joint legal custody" as: ... the condition under which both parents share legal custody and neither parent's rights are superior, except with respect to specified decisions as set forth by the court or the parents in the final judgment or order. A.R.S. § 25-402(2). "Sole custody" is defined as" ... the condition under which one person has legal custody." A.R.S. §25-402(5). Some court orders specifically state how decisions will be made, often noting that parents should cooperate, but if they cannot agree, one parent has final decision-making power. Regardless of how decision-making powers are allocated, both parents usually have the same rights of access to records and other information about the student. Likewise, both parents usually have a right to access to the student and to participate in educational activities. Court orders may limit these rights or delineate when the parent has access to the student. ''"Physical custody" means the physical care and supervision of a child." A.R.S. §25-1 002. Sometimes physical custody is designated in court orders as ''residential custody." The fact that

• ne parent has physical custody of the child does not mean that the other parent has no rights.

Unless there is an order revoking parental rights or otherwise limiting the other parent's rights, the other parent still has full rights to records and to participate in the child's education. Note that Senate Bill 1127, which became effective December 31, 2012, substitutes the term ''legal decision-making" for "custody." As of December 31, 2012, instead of designating parents as having "custody," and defining parental rights accordingly, courts will designate parents as having "legal decision-making" authority. "Legal decision-making" is defined as:

The legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions. For the purposes of interpreting or applying any international treaty, federal law, a uniform code or the statutes of other jurisdictions of the United States, legal decision-making means legal custody. S.B. 1127, Legal Decision-Making and Parenting Time (amending Title 25, Chapter 4, Arizona Revised Statutes). The amendment does not define "personal care decisions." For your reference, the text of the amendment is included at the end of these materials.

• II. Enrollment, Withdrawal and School Choice:

Educators often experience difficulty when faced with a parent who wants to withdraw a child from school or enroll the child in a new school. The new school is not supposed to enroll a child until s/he has been withdrawn from the prior school. However, the new school is often unaware that the student remains enrolled at his or her prior school. Absent a Court-ordered restriction, schools are reluctant to refuse a parent's request to withdraw the child from school if the parent has joint legal custody. Moreover, schools naturally operate from the perspective that it is in the best interest of the child for the child to attend school, regardless of who has the authority to enroll

• r withdraw the student. Therefore, if a parent with joint or sole legal custody requests that the

child attend school, many schools will permit the attendance. As a result, the child might attend school on the mother's parenting time at School A while attending School B during the father's parenting time.

• A. Suggested solutions for schools:
• If you suspect that both parents will not agree to the enrollment or withdrawal, require that

both sign off.

• Do not allow the parents to enroll and withdraw every other week, according to who has

parenting time.

• If you are not sure what the order means, contact the judge's assistant.
• If the child has a best interest attorney, contact that person.
• Interpret the order to the best of your ability and tell the parents that if they disagree they

need to get a clarification from the Court. You are not there to referee their issues with each

• ther.
• You are trying to abide by the orders and educate the child.
• III. Parental Access to Records:

Under the Family Educational Rights and Privacy Act ("FERPA"), parents generally are entitled to access to their student's records: An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there

is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights. 34 C.F.R. §99.4. Likewise, in Arizona: Unless otherwise provided by court order or law, on reasonable request both parents are entitled to have equal access ... documents and other information concerning the child's education and physical, mental, moral and emotional health including ... school ... and other records directly from the custodian of the records or from the other parent. A.R.S. §25-403.06(A). Arizona also provides for penalties, including costs and attorney fees when a person does not comply with a reasonable request for such records, and imposes "appropriate legal sanctions" upon a parent who attempts to restrict the release of documents or information by the custodian without a prior court order. A.R.S. §25-403.06 (A) and (D). What should a school do if a parent asserts a safety concern over records being released to the

• ther parent?
• A. Suggested solutions for schools:

If safety is an issue, schools can rely upon the FERPA regulation that allows an educational institution up to forty-five ( 45) days to comply with the request: The educational ... institution ... shall comply with a request for access to records within a reasonable period of time, but not more than 45 days after it has received the request. 34 C.F.R. §99.10(b). Schools should provide records "within a reasonable period of time." However, this forty-five-day window can give the school time to advise the concerned parent that a record request has been made and that the school will be required to comply within forty- five(45) days unless the concerned parent has at least initiated proceedings to restrict the release

• f the records.

Schools can also provide the requested records, but redact information such as addresses and phone numbers to address the safety concerns of the other parent. This may prove sufficient for the parent who is seeking information about how the child is doing in school, without providing information that the concerned parent is afraid for the other parent to have.

• IV. Participation in School Activities

Court orders often fail to address specific questions, such as whether parents are allowed to come to campus tor various activities, like having lunch with their child or volunteering in the classroom. Navigating these situations can be difficult, especially if the parents refuse to behave reasonably.

• A. Suggested solutions for schools:

If a parent wants to visit his or her child for lunch, schools can usually allow it, regardless of

parenting time orders. However, schools should limit the parent's access if such visits become disruptive or upset the student, thereby affecting the learning environment. In addition, if there are orders specific to whether and when a parent may visit, schools need to comply with those

• rders. Of course, if a parent's access to the child is restricted, such as being limited to

supervised parenting time, the school should not allow the visits and should contact the Court if there are any questions about what is permitted. When it comes to volunteering in the classroom, assuming there are no other restrictions, let the teacher determine whether s/he needs volunteers and whether this particular volunteer is going to be of assistance or disrupt the learning environment. If parents have protective orders against one another and both want to attend a school performance or promotion, the school should discuss the situation with the parents in advance and try to work out a solution. If that does not work, the school may want to contact the SRO to determine a plan of action. If a parent is being disruptive, it is a good idea to start by reminding them of any school rules, such as signing in at the front office before going anywhere on campus. If things escalate, schools can send a written warning, outlining the previous disruptions and warning that the parent may be subject to certain charges, including trespassing. If the parent persists, the school should involve the SRO or local law enforcement.

• V. Step-parents

What rights, if any, do step-parents have? Are they allowed to have access to records? Can they visit the student on campus? Can they volunteer in the classroom? Can they pick the student up from school or be notified in case of emergency, can they attend parent-teacher conferences? The regulations implementing FERPA define "parent:" Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian. 34 C.F.R. §99.3. The U.S. Department of Education has provided some guidance with respect to when step-parents are entitled to access educational records under FERPA: The Department has determined that a parent is absent if he or she is not present in the day-to-day home environment of the child. Accordingly, a stepparent has rights under FERPA where 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. In such cases, step-parents have the same rights under FERPA as do natural parents. Conversely, a step-parent who is not present on a day-to-day basis in the home of the child does not have rights under FERPA with respect to such child's education records. Letter to Parent re: Disclosure of Education Records to Step-parents, August 20, 2004.

Applying this standard when the parents have shared physical custody and the student lives in the homes of both of the original parents is very difficult. Below are a few guidelines to help schools address these tricky situations.

• A. Suggested Solutions for Schools:

Often, the problem can be solved by providing records to the biological parent or legal guardian. What that parent does with the records is up to the parent. Obviously, if the school is mailing things to the home of a parent, the school has nothing to do with whether that parent shares the records with a step-parent, or even a significant other for that matter. The original parents also generally are permitted to designate any responsible adult as an emergency contact or as the person who can pick the student up from school. This would be limited by any orders to the contrary, or any safety concerns (for example, if a person tries to pick the student up and appears to be intoxicated). In such instances, the school needs to consult with local law enforcement.

• VI. Orders of Protection

On occasion, an order of protection includes the school as a protected address. What should a school do if a parent is not allowed on campus to see one child, but has other children at the school that are not the subject of the order? What is the protective order protects a teacher from a parent? What if the protective order is between students?

• A. Suggested solutions for schools:
• When a protective order prohibits a parent from coming on campus, schools should advise

staff of the order and do their best to comply.

• If possible, enlist the help of your School Resource Officer if an employee has an order

against a parent.

• VII. Educator witnesses

What can schools do when a teacher or other school employee is asked to testify or provide statements?

• A. Suggested solutions for schools:
• Do not provide statements unless required by subpoena or other Court order.
• Do provide documents to which the parents are entitled, and consider providing the

documents to both sides when asked by one parent.

• Call the District legal department, she will contact the Court or the attorney and ask

whether arrangements can be made to take the testimony telephonically and at a time that works for the employee's schedule.

• Generally, do not have the employee speak informally with one side without the other side

present.

The information above is an excerpt from a legal seminar presented by Michelle G. Marshall, General Counsel, Scottsdale Unified School District and The Honorable Pamela S. Gates, Maricopa County Superior Court