Dealing with the Divorced Parent: Strategies for Schools, Part II
The first article in this series, Dealing with the Divorced Parent, provided detailed issues that schools might have with conflicting directives from divorced parents. This second article deals with the situation where one or both parents will attempt to secure witnesses from the school to provide information to the Court on that parent’s behalf.
Occasionally teachers, counselors, bus drivers, teachers’ aides or other school employees will be approached by a parent asking for the staff member to write a letter on the parent’s behalf. This letter will commonly be requested as something to “give to the judge” to tell either good things about that parent’s interactions with the child or about bad things the other parent has done or failed to do. While the school doesn’t want to get involved with what the staff member chooses to say on his/her own time, if a staff member requests advice on how to handle the situation, my recommendation is to decline the request.
First, the judge assigned to the case will generally not accept such letters as proof of any material fact in the case. There are several reasons for not accepting the letter: the person writing the letter isn’t present in court, isn’t testifying under oath, and isn’t subject to cross examination by the other party. The second reason to decline to provide a letter is one of self-preservation for the staff member and the school: today’s non-custodial parent may be tomorrow’s custodial parent; today’s “educational decision maker” may not hold that distinction tomorrow. In fact, there is now a presumption for “maximized parenting time” in Arizona, meaning that both parents share parenting time—formerly “custody”—of the child. Whether or not there is sole or shared custody or some other form of parenting time in the case, however, the school and its staff members need to work with both parents for the best interests of the child. Writing letters on behalf of one parent and “against” the other parent isn’t an effective way to build good working relationships with both parents. Rather than a straight decline, an employee may offer to simply write a letter about the child—the child’s strengths and where the child needs help—information, in short, that can be used to support the child’s needs, if the Judge decides to consider it.
The parent may take a decline to provide a letter as a hint that that staff member needs to be subpoenaed to testify. While being subpoenaed solves the problems of the staff member not being present in court, not being under oath, and not being subject to cross-examination, it doesn’t really solve the problem of the impression of “us vs. them”. A staff member who is subpoenaed is required to testify, but the person’s manner on the stand may do much to ameliorate any belief that the staff member is biased. In order to do that, the staff member should appear, and actually be, professional and reserved while testifying. Of course, the staff member must be truthful, but should be circumspect regarding any requests to join in bashing the other party. It is best for the witness to only answer the questions asked; to not speculate unless requested to do so. The staff member witness should identify which answers are based on personally observed facts, experience and training and which answers are suppositions from the information provided by someone else. Finally, the staff member witness should always answer “I don’t know” or “I don’t remember,” if that is the truth, rather than guessing about an answer.
If a staff member is subpoenaed, the school may wish to contact the attorney for the parent subpoenaing the staff member to see if a date and time for the testimony can be narrowed down. Otherwise, the staff member might be expected to sit in the hall, day after day, waiting to be called, while the school has to provide a substitute during the absence. Often times, when the problem is explained to the attorney, the attorney can be persuaded to call the school witness as the first witness in the morning of a multi-day trial or the first witness after lunch. Another option might be to have the attorney call the school to notify the staff member to head over to court when the witness scheduled immediately before the staff member is called to the stand. This would normally allow the staff member time to get to court, but not entail a lengthy wait.
As always, good communication is the key to dealing with the parents, the attorneys, and the court.
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 Dealing with the Divorced Parent, 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.