Strategies for Schools: Dealing with the Divorced Parent
Custody issues can be really nasty for the parties involved, but just as bad for the school as dueling parents attempt to force the schools to become involved. One or the other parent—or sometimes both on different days, will besiege the school with demands: “The custody order gives me custody Monday through Wednesday and I get to make all decisions regarding education. I’m telling you that Mom is not to volunteer at the school.” “I don’t care that the kids do live with their dad and their stepmom, I don’t want THAT WOMAN picking the kids up from school.” “I have primary custody of our child, the child lives with me, and I get to make all educational decisions—I do not want Dad to come into the IEP meeting.” Another area where parents try to bring schools into the conflict is when one or both parents attempt to recruit a teacher, counselor, school psychologist or other professional into either providing a written statement about the child and/or the other parent or to testify in a custody hearing. A third issue occurs when one parent enrolls the child during that parent’s visitation; then during the other parent’s visitation, the other parent withdraws the child and enrolls the child in a different school district…and first parent wants to re-enroll the child during the first parent’s next visitation. This article will provide strategies for schools in managing parental participation.
First, determine what the school normally allows happily married parents to do. Let’s say a non-sex offender parent wants to volunteer at the school, do you let them? If so, then let the divorced parent volunteer. If a parent picks a child up at school, then let the divorced parent pick the child up from school. If a parent normally attends an IEP meeting, then a divorced parent can attend the IEP meeting. If a parent normally gets grade cards, meets with the teacher, attends open houses, comes to see the class play, then let the divorced parent have access to do these things, if he/she wants to do so.
The exceptions would be if there is a specific Superior Court order precluding a parent from any contact with the child, or, if no such order exists, when having the parent on campus causes distractions. By distraction, I mean issues like the child is so disturbed after visiting with the parent (whether the non-custodial OR custodial parent) that the child cannot focus on school; if the parent monopolizes the child and prevents the child from social interactions with his/her peer group; if the parent monopolizes the teacher/staff to the detriment of the other students; if the parent is violent, loud, threatening; etc., then the school can and should certainly curtail the length and type of interactions that occur with the parent during the school day.
Next, explain to both parents that schools have neither the time nor resources to determine for each child with divorced parents what that particular child’s custody or visitation order means, which day dad has custody and can pick up the child, or which day mom has visitation and can visit the school and which day the child will be riding the bus. Unless there is a specific written order from the Superior Court as part of a dissolution or custody decree precluding the parent from being at the school or having any contact with the child, then the school is going to consider each parent the same as any other parent. If the parent doesn’t want the child going home with the other parent on any day other than that parent’s visitation day, then the parent needs to make the child aware of which day he/she can go home with the other parent and on which day he/she needs to get on the bus, rather than relying on the school to keep the custody orders sorted out.
Remind the parents that while the school is deliberately deciding to stay out of that visitation fight, an aggrieved parent can always allege custodial interference under A.R.S. §13-1302 (A)(3) with law enforcement. That statute states that a person commits custodial interference: “If the person is one of two persons who have joint legal custody of a child, takes, entices or withholds from physical custody the child from the other custodian.” Law enforcement may not choose to act upon the complaint, but custodial interference is far more within their jurisdiction than the school’s.
Arizona custody orders will often give divorcing parents joint custody and joint visitation, but will provide one parent with the tie-breaker as far as making decisions for the children regarding religion and education. A parent with such education decision making rights may try to use them to prevent a non-custodial parent from attending an IEP meeting or securing a child’s educational records. In Navin v. Park Ridge Sch. Dist. 64, 270 F.3d 1147, 1149 (7th Cir.2001), the natural father of a child with a disability was able to challenge the school district’s IEP because while he was not the custodial parent, he still retained parental rights under the divorce decree. The Navin Court found that although the mother had authority to make final educational decisions, the father still had rights under the custody decree to be involved in and to influence his son’s education. In Taylor v. Vermont Dept. of Educ., 652 F. Supp. 424 (2nd Cir., 2012), the District Court declined to overrule a state court’s custody decree stripping the mother of the right to participate in her daughter’s education. Although the Taylor Court declined to “federalize” state custody orders, it also found that even though the lower court gave the father the right to make educational decisions for the child and removed the mother’s rights to participate in her daughter’s education, that ruling did not preclude the non-custodial mother from her parental rights to educational records under the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g. Lesson? Unless there is a specific court order preventing a noncustodial parent from attending an I.E.P. meeting, let the parent attend; but the right to have the final say on behalf of the parents in the I.E.P. will belong with the parent having the right to make education decisions. Unless there is a specific court order precluding the non-custodial parent from receiving educational records, provide the records (although the school district can still charge for each page copied!).
Moving on to step-parents, the Department of Education (D.O.E.) issued a “Dear Parent” guidance letter in 2004 stating that for purposes of the Family Educational Records Privacy Act (FERPA), a step-parent with whom the child resides along with the biological parent, is considered to be a parent for purposes of FERPA. This interpretation is further borne out by the D.O.E.’s regulations implementing the Individuals with Disabilities Education Act, (I.D.E.A.) § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq., which defines “parent” to include “(3) A person acting in the place of a parent (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the child’s welfare).” To cut down on the squabbling as to whether a child “resides” with a biological parent and a step-parent, however, schools can have the biological parent issue the school a notarized directive allowing distribution of student records to the step-parent. The records will be distributed according to the directive and both the directive and the information as to what was disclosed, to whom and when will be maintained in the child’s log in the child’s educational records file. The biological parent can also grant the step-parent an A.R.S. §14-5104 limited power of attorney, allowing the step-parent to make decisions for the child to the same extent as the biological parent, with the exception of allowing the child to marry or be adopted.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Strategies for Schools, or other Education Law matters, please feel free to contact Candyce B. Pardee at 800.863.6718, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona with a branch office in Yuma, Arizona, and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.