Often the most difficult decisions in school administration are those arising out of students’ family dynamics. These dynamics have become more complicated with the rise of non-traditional families. With increasing frequency, parents are playing out parenting disputes in the school setting over issues that include school-parent communication, student visitation, and access to student records. Districts should be familiar with the laws that operate in these areas, and should develop best practices to maintain neutrality.
The Uniform Dissolution of Marriage Act and the Need for Accurate Court Documents
The first step in addressing educational issues arising from a parenting dispute is getting accurate information about the parents’ respective rights vis-à-vis the student. The district’s enrollment records are a good place to start, but ultimately, state law determines how custody and/or parental responsibilities are allocated, and state courts are responsible for issuing orders regarding these issues. In 1999, the Colorado legislature did away with the concept that either parent has “custody” of a child as the result of a divorce, and there is now a presumption of shared responsibility by parents after they have been divorced (or if they have never been married) unless otherwise ordered by a court.
To facilitate the allocation of parental responsibilities, parents must submit a parenting plan that allocates parenting time and decision-making authority in accordance with the best interests of the child. A court may order any possible combination of parenting time and decision-making authority. For example, a parent might be given parenting time, but no decision-making authority. As set forth below, access to information pertaining to a child, including school records, generally may not be denied to any parent allocated parental responsibilities.
For these reasons, if called upon to address a dispute between divorced or unmarried parents about educational issues, districts should request a copy of the court order or parenting plan allocating parental responsibilities. In the absence of such order or plan, districts should presume that the parents share parental responsibility, including decision-making authority.
The second step in navigating a parenting dispute is developing a parent communication plan that complies with applicable law and district policy. Depending on the nature of each parent’s responsibilities under a court order or otherwise, a school district may communicate with parents in a variety of ways. For example, a district may choose to conduct its formal communications with only the parent who has decision-making authority regarding education. In the alternative, it may send such information to both parents, provided there is no court order to the contrary. If both parents share decision-making authority, then the school district may ask parents to select one or the other as a primary contact for school communications.
Regardless of the communication plan that the district follows, several important principles apply. First, a parent who shares parental responsibilities is generally entitled to inspect the school’s communications to the other parent. Second, courts have the power to conduct investigations about what is in a child’s best interests for purposes of allocating parental responsibilities. Written and verbal communications among district staff and between district staff and parents can be subpoenaed as part of such investigations, and staff can be compelled to testify in a court hearing on parental rights. With this in mind, school administrators and staff should be professional in their communications with parents and each other and should refrain from taking a side or offering an opinion in the underlying dispute about parental rights.
Visitation During the School Day
The third consideration when handling a parenting dispute is visitation during the school day. As a general rule, parents do not have a legal right to visit their children in school. Yet, for practical and educational benefits parents are often allowed access to the school setting. School districts should comply with applicable district policy and any court order or parenting plan in permitting parents to visit their children during the school day. Similarly, school districts should have clear policies or practices addressing the release of children to their parents at the end of each school day. As a general matter, it is best to err on the side of doing what is in the best interests of the child, even if doing so incurs the wrath of a parent or other individual who, unbeknownst to the school, has the authority to pick up the child.
Access to Education Records
One last step in addressing a parental rights dispute is to understand applicable records access and privacy laws. Under the Family Educational Rights and Privacy Act (FERPA), school districts may presume that a parent has the authority to access a student’s educational record unless the district has been provided with evidence that there is a court order to the contrary. Likewise, Colorado law provides that access to information pertaining to a child, including school records, generally may not be denied to any parent allocated parental responsibilities. A parent can consent to sharing his or her child’s education records with another person, even if such person is not the child’s parent. If a school district receives a request for records from someone other than a parent, then the district should not release the records without a valid release, unless FERPA permits otherwise. If a school district receives a subpoena for education records, the district should consult with legal counsel to determine the validity of the subpoena and then follow the procedures set forth in FERPA.
In short, parental rights disputes will continue to pose challenges for districts and their staff. However, by adopting best practices with respect to parent communications, student visitation, and access to education records, districts will be better equipped to anticipate and respond to legal and practical issues that might arise in this area.
Kristin C. Edgar is an attorney at Caplan and Earnest in Boulder. She has more than a decade of experience working on school law matters. For more information about this topic and other legal matters, she may be reached at 303-443-8010 or [email protected].