It is not uncommon for students’ parents to try and put school districts and their staff in the middle of custody and other parental disputes. These situations are often uncomfortable for school officials and can threaten the school’s relationship with the students involved. School staff are trained to educate, not to navigate family disputes and certainly not to navigate the legal system governing family matters, such as child custody, physical placement, and related considerations.
This article discusses a few of the common circumstances in which school staff are forced to encounter child custody and related matters, often as part of ongoing parental disputes.
Like many areas of the law, family law uses several key terms to describe parental rights. It is important to understand these terms when reviewing relevant court orders or other legal documents affecting familial rights. Legal custody refers to a parent’s rights to make major life decisions, including educational decisions, for a child. When both parents share legal custody, it is referred to as joint custody. When only one parent retains legal custody it is referred to as sole custody. The word custody is often associated with possession, such as being taken into police custody. However, the term custody in this context is unrelated to how much time a child spends with the parent. For instance, parents may share joint custody of a child even though he or she spends little or no time with one parent.
Physical placement is another key term school officials and staff should understand. Physical placement replace the term “visitation” in family law and refers to the time physically spent with each parent. Physical placement is often shared between parents even when one parent has sole custody of the child. Often one parent has primary physical placement and the other parent is granted periods of physical placement on specified days throughout the year.
When parents are unmarried or divorced, the default arrangement, and the one favored by family law courts, is that both parents retain custodial rights jointly and share physical placement equally. When one parent is awarded (or frequently acquires through agreement) primary physical placement, that parent’s residence is the child’s residence for purposes of school enrollment. The other custodial parent, if he or she retains custody without primary physical placement, is still generally entitled to receive information regarding the student and to participate in educational decision making.
When the parents reside in different school districts, general residency rules for enrollment apply. Wisconsin law requires the parents to enter into a parenting plan that specifies “where the child will go to school”. Wis. Stat. 767.41(1m)(e). Any court order involving child custody and/or placement should include a parenting plan. For school officials, the parenting plan is the first line of inquiry in the event a disagreement regarding school enrollment is brought to school officials.
School officials, however, do not enforce physical placement orders or parenting plans. A school district must enroll any student residing in the school district. If the parents cannot agree on school enrollment, or there is no parenting plan in place (which unfortunately occurs frequently), neither parent is entitled to demand that school officials refuse to enroll a resident student. Sadly, this can occur in circumstances where the parents share equal physical placement and reside in different districts.
Parental Access to Records
A parent’s right to access their child’s student records is not based on whether the parent has primary physical placement or whether the parent has joint or sole custody. Parents retain the right to access their children’s student records provided a court has not terminated their parental rights and they have not been denied physical placement. In circumstances where one parent attempts to restrict the other parent’s access to records, school districts should only do so if there is a court order terminating his or her parental rights, denying the parent periods of physical placement, or otherwise restricting the parent’s right to access student records. Wis. Stat. 118.125(2)(n).
Releasing a Student to One Parent
As noted, school staff are not required to nor should they attempt to enforce court orders regarding physical placement or schedules. In some cases, a parent will contact the school to insist that only one parent may pick the child up from school on certain dates and not to allow the other parent to do so. In such a case, a court order addressing physical placement order does not compel the school to assure that only the scheduled parent picks up the child.
Rather, school officials should advise the parent that if they wish this to be the case, a court order specifically requiring it is required. Even if a court order exists, and the restricted parent arrives at school to pick up the child, the school staff should be directed to contact law enforcement. These situations can be volatile and the school is no place for that to play out. If there is concern regarding the child’s safety, it is appropriate to delay the child’s release while staff contact law enforcement. In appropriate circumstances, school officials may also approach the parent to advise them that they have contacted law enforcement because the parent is, by court order, not permitted to pick up the child from school. Ultimately, however, it is a law enforcement decision as to how to handle the situation.
Contentious and emotional disagreements between a student’s parents often places the child in the middle. When that happens, it is likely that the child’s school will also find itself in the middle of the dispute. This can create difficulties in many areas, including enrollment, access to records, and access to the child. In addition, these disputes often involve efforts by one or both parents to secure the testimony of school staff regarding the student. These circumstances are beyond the limited scope of this discussion; however, school officials and staff are well advised to contact school or district administration in any of these circumstances, including any contact seeking – either by request or by subpoena – to obtain the testimony from school staff regarding a student. Likewise, school officials should contact legal counsel to assist in navigating these tricky and emotionally charged scenarios.
For questions regarding this article, please contact the author,
or your Renning, Lewis & Lacy attorney.