Child Custody Issues in the Schools Presented By Dina Harris Cathy Holmes Best Best & Krieger LLP November 19, 2004

A True Can of Worms!

Why? “I need an answer now!” “I need an answer now!” Sensitive personal issues Sensitive personal issues Raises red flags for safety Raises red flags for safety Emotionally charged Emotionally charged Inconsistent court orders Inconsistent court orders No “one-size fits” all answer No “one-size fits” all answer Complex maze of laws Complex maze of laws

Objectives Identify common problems that arise in the schools Identify common problems that arise in the schools Review relevant law as it relates to the schools’ responsibilities Review relevant law as it relates to the schools’ responsibilities Suggest practical tips and protocols Suggest practical tips and protocols

Topics of Discussion Custody basics Residency & attendance Right to records Notifications Medical issues Special Ed concerns Disruption and safety

Custody Basics

Joint Custody “Joint custody” means joint legal and joint physical custody “Joint custody” means joint legal and joint physical custody (Fam. Code § 3002)

Joint Custody “Joint legal custody” means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. (Fam. Code § 3004) “Joint legal custody” means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. (Fam. Code § 3004) “Joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents. (Fam. Code § 3004) “Joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents. (Fam. Code § 3004)

California Presumption California presumes that joint custody is in the best interests of the minor child California presumes that joint custody is in the best interests of the minor child (Fam. Code § 3080)

Joint Legal Custody Order “In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child…” “In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child…” (Fam. Code § 3083)

Sole Custody “Sole legal custody” means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. (Fam. Code § 3006) “Sole legal custody” means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. (Fam. Code § 3006) "Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. (Fam. Code § 3007) "Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. (Fam. Code § 3007)

School Visitation Parents without legal and physical custody may not remove their children from class or visit them in school without consent of the parent with such custodial rights or a court order to the contrary Parents without legal and physical custody may not remove their children from class or visit them in school without consent of the parent with such custodial rights or a court order to the contrary

Rights of Non-Custodial Parents All parents, regardless of custody, have an absolute right to access student records related to their children. (Ed. Code §§ 49061, 49069; Fam. Code § 3025; 20 U.S.C. § 1232(g)) All parents, regardless of custody, have an absolute right to access student records related to their children. (Ed. Code §§ 49061, 49069; Fam. Code § 3025; 20 U.S.C. § 1232(g)) A denial is only proper when made pursuant to a court order A denial is only proper when made pursuant to a court order

Hypothetical A non-custodial parent wishes to access their child’s records, and the custodial parent opposes the request A non-custodial parent wishes to access their child’s records, and the custodial parent opposes the request What should the school do?

Rights of a Minor’s Counsel Reasonable access to the child Reasonable access to the child Standing to seek affirmative relief on behalf of the child Standing to seek affirmative relief on behalf of the child Notice of any proceedings Notice of any proceedings The right to take any action that is available to a party to the proceeding The right to take any action that is available to a party to the proceeding Access to the child's medical, dental, mental health, and other health care records, school and educational records, and the right to interview those who have assessed the child or provided care to the child Access to the child's medical, dental, mental health, and other health care records, school and educational records, and the right to interview those who have assessed the child or provided care to the child

Rights of a Minor’s Counsel The right to reasonable advance notice of and the right to refuse any physical or psychological examination or evaluation, for purposes of the proceeding, which has not been ordered by the court The right to reasonable advance notice of and the right to refuse any physical or psychological examination or evaluation, for purposes of the proceeding, which has not been ordered by the court The right to assert or waive any privilege on behalf of the child The right to assert or waive any privilege on behalf of the child The right to seek independent psychological or physical examination or evaluation of the child for purposes of the pending proceeding, upon approval by the court The right to seek independent psychological or physical examination or evaluation of the child for purposes of the pending proceeding, upon approval by the court

Hypothetical Parents have joint custody, but are disputing terms of visitation Parents have joint custody, but are disputing terms of visitation Assistant principal is contacted by family court mediator assigned to the case Assistant principal is contacted by family court mediator assigned to the case Mediator asks questions regarding child’s attendance at school Mediator asks questions regarding child’s attendance at school What should the school do?

Court Orders

Examples of Types Dissolution Order Dissolution Order Custody Order/Temporary Custody Order Custody Order/Temporary Custody Order Visitation Order Visitation Order Minute Order Minute Order Temporary Restraining Order Temporary Restraining Order Preliminary / Permanent Injunction Preliminary / Permanent Injunction Subpeona for Records Subpeona for Records Others Others

Court Orders Remember Look for the judge’s signature Look for the judge’s signature Look at the date and any limitations Look at the date and any limitations Ideally, request parent to produce certified copies of current order Ideally, request parent to produce certified copies of current order If time is short, call other parent to confirm whether court order presented is the most current If time is short, call other parent to confirm whether court order presented is the most current

Court Orders Remember: A court order only binds the parties to the order. A District is not in violation of the order if a parent violates the custody order. However, a District can be liable if it is negligent in releasing a child to the wrong person, and that child is later harmed.Always use “reasonable care under the circumstances.”

Hypothetical Father has sole legal custody of child Father has sole legal custody of child Mother has frequent visitation rights Mother has frequent visitation rights Court order on file with District permits Mother to be in child’s classroom up to one day a week, at the discretion of teacher Court order on file with District permits Mother to be in child’s classroom up to one day a week, at the discretion of teacher Child has court-appointed minor’s counsel Child has court-appointed minor’s counsel Two days before a class holiday party, minor’s counsel and Father call to say that Mother is not allowed to be at the party, which mother disputes Two days before a class holiday party, minor’s counsel and Father call to say that Mother is not allowed to be at the party, which mother disputes What should the school do?

Residency and Attendance

Residency California laws sets forth residency requirements for school attendance. (Ed. Code § et seq.) California laws sets forth residency requirements for school attendance. (Ed. Code § et seq.) Generally, a child must attend the school district in which the residence of either the parent or legal guardian is located. (Ed. Code § 48200) Generally, a child must attend the school district in which the residence of either the parent or legal guardian is located. (Ed. Code § 48200) Residency can also be established when the child lives with a “caregiving adult” who resides in the district. (Ed. Code § 48204(a)(4)) Residency can also be established when the child lives with a “caregiving adult” who resides in the district. (Ed. Code § 48204(a)(4))

Hypothetical Mother lives in District A Mother lives in District A Father lives in District B Father lives in District B Parents share joint legal custody Parents share joint legal custody Where does the student go to school? What school district is responsible for the special education costs of a student’s placement pursuant to an IEP?

Caregiver Affidavit A pupil who lives in the home of a caregiving adult that is located within the boundaries of that school district satisfies residency requirements A pupil who lives in the home of a caregiving adult that is located within the boundaries of that school district satisfies residency requirements Execution of an affidavit under penalty of perjury pursuant to Part 1.5 (commencing with Section 6550) of Division 11 of the Family Code by the caregiving adult is a sufficient basis for a determination that the pupil lives in the caregiver's home, unless the school district determines from actual facts that the pupil is not living in the caregiver's home Execution of an affidavit under penalty of perjury pursuant to Part 1.5 (commencing with Section 6550) of Division 11 of the Family Code by the caregiving adult is a sufficient basis for a determination that the pupil lives in the caregiver's home, unless the school district determines from actual facts that the pupil is not living in the caregiver's home

Limits of Caregiver Affidavit Caregiver affidavit establishes residency Caregiver affidavit establishes residency Caregiver may enroll student in school Caregiver may enroll student in school Caregiver may consent to “school-related medical care” (required for enrollment) Caregiver may consent to “school-related medical care” (required for enrollment) Caregiver affidavit does not: Caregiver affidavit does not: establish parental or guardian rights establish parental or guardian rights establish a right to access student records establish a right to access student records Additional written authorization is required for assignment of other parental rights Additional written authorization is required for assignment of other parental rights

Right to Records

Access to Records Every parent has an absolute right to access their child’s pupil records, absent a court order indicating otherwise Every parent has an absolute right to access their child’s pupil records, absent a court order indicating otherwise

California Law: California Law: Education Code Education Code § and Family Code § 3025: All parents have an absolute right of access to their children’s records! FERPA 34 C.F.R. § 99.4: All parents have a right to records unless a court order specifically denies one parent the right to access their child’s records.

“Parent” General definition (Ed. Code § 49061(a)) of “Parent” means a natural parent, an adopted parent, or legal guardian General definition (Ed. Code § 49061(a)) of “Parent” means a natural parent, an adopted parent, or legal guardian General rule is that “Parent” does not include Caregiver, stepparent, grandparent, sibling, or other person living with the child General rule is that “Parent” does not include Caregiver, stepparent, grandparent, sibling, or other person living with the child Note: IDEA regulations (34 C.F.R. § ) and Ed. Code § expand the definition of “Parent” for special education purposes Note: IDEA regulations (34 C.F.R. § ) and Ed. Code § expand the definition of “Parent” for special education purposes

“Access” “Access” means: “Access” means: a personal inspection and review of a record or an accurate copy of a record a personal inspection and review of a record or an accurate copy of a record receipt of an accurate copy of a record receipt of an accurate copy of a record an oral description or communication of a record an oral description or communication of a record a request to release a copy of any record (Ed. Code § 49061(e)) a request to release a copy of any record (Ed. Code § 49061(e))

“Pupil Record” “Pupil record” means “Pupil record” means any item of information directly related to an identifiable pupil, other than directory information, maintained by a school district, whether recorded by handwriting, print, tapes, film, microfilm or other means any item of information directly related to an identifiable pupil, other than directory information, maintained by a school district, whether recorded by handwriting, print, tapes, film, microfilm or other means

Limitations If the parents are divorced or legally separated, only a parent having legal custody of the pupil may challenge the content of a record, offer a written response to a written record, or consent to release records to third parties If the parents are divorced or legally separated, only a parent having legal custody of the pupil may challenge the content of a record, offer a written response to a written record, or consent to release records to third parties Either parent may grant consent to release records if both parents have notified the school, in writing, that an agreement has been made. (Ed. Code § 49061(a)) Either parent may grant consent to release records if both parents have notified the school, in writing, that an agreement has been made. (Ed. Code § 49061(a))

Hypothetical Father seeks copies of his child’s records, including emergency card information Father seeks copies of his child’s records, including emergency card information Mother and child just moved to a shelter for abused women in a neighboring school district Mother and child just moved to a shelter for abused women in a neighboring school district Mother has expressed fear and concern about the Father and does not want the District to release the records Mother has expressed fear and concern about the Father and does not want the District to release the records What should the District do?

Hypothetical Child lives with a family friend Child lives with a family friend Father is incarcerated, mother is missing Father is incarcerated, mother is missing Mother has signed a sworn statement authorizing the family friend to act on her behalf with respect to the child Mother has signed a sworn statement authorizing the family friend to act on her behalf with respect to the child The family friend’s spouse has asked for copies of pupil records for enrollment in a different school district The family friend’s spouse has asked for copies of pupil records for enrollment in a different school district What should the District do?

Notifications

Notifications Who is entitled to “parent” notifications? Who is entitled to “parent” notifications? Annual notification Annual notification Special education notices Special education notices Student discipline notices Student discipline notices Progress reports and report cards Progress reports and report cards

Hypothetical Mother and Student live with Grandmother Mother and Student live with Grandmother Father lives out of state Father lives out of state Mother becomes incarcerated and assigns to Grandmother parental rights regarding Student Mother becomes incarcerated and assigns to Grandmother parental rights regarding Student Student is recommended for expulsion Student is recommended for expulsion Notice of hearing is sent to Grandmother Notice of hearing is sent to Grandmother Father appeals the expulsion because he did not receive the notice of hearing Father appeals the expulsion because he did not receive the notice of hearing Will Father prevail?

Medical Issues

Administration of Medication Administration of medication pursuant to physician’s written statement. (Ed. Code § 49423) Administration of medication pursuant to physician’s written statement. (Ed. Code § 49423) School-assisted School-assisted Self-administered Self-administered Auto-injectable epinephrine (SB 1912, 9/28/04) Auto-injectable epinephrine (SB 1912, 9/28/04) Asthma (AB 2123, 1/1/05, adds Section ) Asthma (AB 2123, 1/1/05, adds Section ) Written authorization required from parent, foster parent or guardian Written authorization required from parent, foster parent or guardian Only parent with legal custody may authorize Only parent with legal custody may authorize

Caregiver Affidavit A caregiver who is a relative and signs the affidavit shall have the same rights to authorize medical care and dental care for the minor that are given to guardians A caregiver who is a relative and signs the affidavit shall have the same rights to authorize medical care and dental care for the minor that are given to guardians "Relative" means a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix "grand" or "great," or the spouse of any of the persons specified above, even after the marriage has been terminated by death or dissolution "Relative" means a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix "grand" or "great," or the spouse of any of the persons specified above, even after the marriage has been terminated by death or dissolution

Emergency Card Information Emergency cards may include contact information for use by the school in the case of emergency when the parent cannot be reached. (Ed. Code § 49408) Emergency cards may include contact information for use by the school in the case of emergency when the parent cannot be reached. (Ed. Code § 49408) Emergency cards do not establish parental rights in listed individuals Emergency cards do not establish parental rights in listed individuals

Hypothetical Child lives with Mother Monday-Thursday Child lives with Mother Monday-Thursday Child lives with Father Friday-Sunday Child lives with Father Friday-Sunday Father sends a note to school authorizing the Stepmother to pick up the child early from school for a dentist appointment on Monday Father sends a note to school authorizing the Stepmother to pick up the child early from school for a dentist appointment on Monday Stepmother is listed on the Emergency Card as a contact in the case of an emergency Stepmother is listed on the Emergency Card as a contact in the case of an emergency What should the school do?

Special Education Concerns

Who can request an assessment? Who can request an assessment? Who can authorize an assessment? Who can authorize an assessment? Who is entitled to a copy of parent rights? Who is entitled to a copy of parent rights? Who can participate in an IEP meeting? Who can participate in an IEP meeting? Who can file for Due Process with SEHO? Who can file for Due Process with SEHO?

Effect of Legal Custody Only parents with legal custody have standing to challenge school district action regarding their child’s education. (Tustin Unified School District (1985) 507 IDELR 120) Only parents with legal custody have standing to challenge school district action regarding their child’s education. (Tustin Unified School District (1985) 507 IDELR 120)

Disruption and Safety

Disruption on Campus Schools do not need to tolerate disruptive parents Schools do not need to tolerate disruptive parents Absent a court order, Penal Code § and Education Code § present the best tools for school officials to avoid disruption on campus by parents Absent a court order, Penal Code § and Education Code § present the best tools for school officials to avoid disruption on campus by parents

Penal Code § The principal or designee may direct any person (including a parent) to leave school grounds if: The principal or designee may direct any person (including a parent) to leave school grounds if: The person enters the campus outside of the common areas where public business is conducted and The person enters the campus outside of the common areas where public business is conducted and It reasonably appears that the person is committing any act likely to interfere with the peaceful conduct of the activities of the campus or facility, or has entered the campus or facility for that purpose It reasonably appears that the person is committing any act likely to interfere with the peaceful conduct of the activities of the campus or facility, or has entered the campus or facility for that purpose

Penal Code § If that person fails to leave upon request, or returns without following the posted requirements to contact the administrative offices of the campus, he is guilty of a misdemeanor If that person fails to leave upon request, or returns without following the posted requirements to contact the administrative offices of the campus, he is guilty of a misdemeanor However, a principal shall allow a parent/guardian to reenter the campus if necessary to retrieve the child for disciplinary reasons, for medical attention, or for a family emergency However, a principal shall allow a parent/guardian to reenter the campus if necessary to retrieve the child for disciplinary reasons, for medical attention, or for a family emergency

Education Code § “Any parent, guardian or other person whose conduct in a place where a school employee is required to be in the course of his or her duties materially disrupts classwork or extracurricular activities or involves substantial disorder is guilty of a misdemeanor.” “Any parent, guardian or other person whose conduct in a place where a school employee is required to be in the course of his or her duties materially disrupts classwork or extracurricular activities or involves substantial disorder is guilty of a misdemeanor.”

Safety Concerns Schools need not tolerate abusive, hostile or threatening parents Schools need not tolerate abusive, hostile or threatening parents Schools should use law enforcement if necessary to resolve disruption or dispute between parents Schools should use law enforcement if necessary to resolve disruption or dispute between parents Schools should consider obtaining a restraining order against parents when necessary (but will need specific threats to safety) Schools should consider obtaining a restraining order against parents when necessary (but will need specific threats to safety)

Hypothetical Mother without legal custody of child wishes to volunteer at child’s school Mother without legal custody of child wishes to volunteer at child’s school Father does not want Mother to be a volunteer Father does not want Mother to be a volunteer No court order exists that specifically prevents Mother from being on campus No court order exists that specifically prevents Mother from being on campus District practice allows non-parent community members to volunteer at the school District practice allows non-parent community members to volunteer at the school What should the school do?

Practice Tips

1.Always use reasonable care to protect the safety of students Court orders bind only the parties to the order. However, schools do have a duty to exercise reasonable care under the circumstances. If the school is on notice that a student may be in danger, it is required to exercise "due care" to prevent foreseeable injury caused by their action or inaction (i.e., releasing contact information, not warning the custodial parent or authorities, etc.)

Practice Tips 2.Schools have five (5) days in which to provide a parent access to student records. That time may be used to inform the custodial parent of the request if deemed appropriate

Practice Tips 3. Use Penal Code § and Education Code § to provide warning to parents and ultimately call upon law enforcement when necessary to maintain order

Practice Tips 4. Only a “parent” as defined in Education Code § is entitled to attend and participate in the development of IEPs and otherwise make educational decisions relating to a child with disabilities 5. When in doubt, require a newly certified copy of the current court order. This can be obtained in a day

Practice Tips 6. Inform parents annually that it is their responsibility to provide the school with a certified copy of any current court orders of which the school should be aware

Practice Tips 7. Do not be seduced by parents! School employees, including teachers, should never provide written statements requested by a parent related to custody. Wait to be subpoenaed 8. Do not allow parents to shift their crisis to the District. Put the responsibility back on the parents to obtain clarity in court orders

Practice Tips 9. Develop clear protocol in your District regarding the handling of court orders or calls from family or juvenile court attorneys. Consider forwarding all custody issues to central administrator 10. If a non-custodial parent takes a child from campus, immediately call the other parent and/or law enforcement

The End Disclaimer: The information contained in this presentation is not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this presentation. © 2004 Best Best & Krieger LLP