Custody, court orders, and requests for records (September 2013 School Leader Update)
All too often, AEAs and school districts are confronted with parents or guardians who disagree about educational decisions for a student. With rare exception, the parties are just trying to do what is right for the child. For those difficult situations that oc-cur, AEAs and school districts must consider whether a court order or decree appoints a particular person to make a child’s educational decisions. Here are some general legal considerations to consider:
No Court Order. According to Iowa family law, in the absence of a court order, presume both parents have equal decision-making power, even if the child lives with one parent more than the other parent.
Court Order with Specific Language about Educational Decisions. If a court decree specifically grants a parent exclusive power to make educational decisions, follow that provision. (Orders with such specific language are relatively rare; school officials should never take a parent’s word that the language exists.)
Court Order with No Specific Language about Educational Decisions. In the absence of specific language about educational decisions, look for the following language or terms:
- “Joint Custody.” If there is a court order (divorce decree, final custody decree, temporary custody and visitation order) that grants parents “joint custody” or “joint legal custody,” the parents have equal decision-making power, even if the court order provides that the child lives with one parent more than the other. See Iowa Code section 598.1(3).
- “Sole Custody.” If there is a court order granting one parent “sole custody,” “legal custody,” or “sole legal custody,” that parent acts as the child’s parent for IDEA purposes, even if the child lives for a significant amount of time with the other parent. See Iowa Code section 598.1(5).
Juvenile Court Orders. Juvenile court orders may change frequently, and may change the authority of biological or adoptive parents to make educational decisions. If questions arise, contact the local DHS office for additional information or clarification.
Domestic Abuse Protective Orders. Courts frequently issue domestic abuse no-contact orders on a temporary basis. Those orders frequently grant custody of minor children to the protected party, and prohibit the abuser from having any contact with the children. See Iowa Code section 236.5. Unless the order otherwise specifies, consider the protected party as the only party who can make educational decisions for the child, until the order is modified or expires. Sometimes, courts issue domestic abuse protective orders as part of a divorce case. In those cases, the domestic abuse protective order will not discuss custody but will refer to other orders in the case, which should be consulted.
Quick, easy-reference matrix for custody and request for student records under Family Education Rights and Privacy Act (FERPA)
|Who is making the request||Wants access to records (including parent/teacher conference)||Wants access to child (including picking child up, having lunch with child at school)|
|Custodial Parent (children live with)||Receives all information, report cards, notes home, etc.||Full access to child, subject to attendance center rules.|
|Non-Custodial Parent (children do not live with)
Note: The Iowa Supreme Court states that it is the responsibility of the custo-dial parent to “feed” information about school and school activities to the non-custodial parent. However, FERPA requires you to respond to a request from either parent. You do not have to send information to the non-custodial parent if that parent has not asked for anything.
|Per FERPA, the non-custodial parent has same rights as custodial parent to child’s records.
If the custodial parent doesn’t want the other parent getting records or attend-ing parent/teacher conferences, put burden on the custodial parent to pro-vide a court order that limits other par-ent's right to access records. Do not make the non-custodial parent pro-duce an order that states that s/he is entitled to access; the law gives him/her access absent an order to the contrary.
|If the terms of the court decree or order clearly and specifically state that the non-custodial parent has visitation at the time and date requested, it’s OK. If the decree or order just states “liberal and reasonable visitation,” consult your school attorney.|
|Step-parent – married to custodial parent||No independent rights of access; must access via spouse.
May attend parent-teacher conference (if spouse consents) with or without spouse.
|OK only with the consent of spouse; do not have to get consent of non-custodial parent.|
|Step-parent – married to non-custodial parent||No independent rights of access; must access via spouse.
May attend parent-teacher conference (if spouse consents) with or without spouse, unless there is a court order to the con-trary.
|If the decree is specific as to time and date of visitation and if non-custodial parent (spouse of step-parent) consents, the step-parent may pick up children. If decree is not specific, only OK with consent of custodial parent.|
|Grandparents, any relatives||If a grandparent or other relative is the guardian, OK. If not, put burden on relative to get written consent from either parent (assuming the parent could access the records) or a court order or decree.||
If grandparent or other relative is the guardian, OK. If not, put the burden on the relative to get written consent from the custodial parent or a court order that is specific as to times and dates.
Remember: the Iowa Supreme Court has said that grandparents have no rights to visitation with a grandchild without the consent of the parent.