Divorce decrees, a dissolution of a marriage contract between a petitioner and respondent which set forth the conditions of the dissolution and guardianship of minor children, are not binding upon schools unless specifically stated in statute (§30-3-1). Some decrees of divorce inform schools (1) who the custodial legal guardian is and (2) who has access to the student. Schools are encouraged to obtain a copy of the complete decree of divorce and retain a copy in the student’s cumulative folder.
“Any parental rights not specifically addressed by the court order may be exercised by the parent having physical custody of the child the majority of the time” (§30-3-10.3.4). Rights not specifically addressed would include such things as parent-teacher conferences, right to be added in Skyward (or other student information systems/programs), email access to teachers through Skyward Access, teacher conferences, school communication(s), etc., except access to written records (see FERPA law).
For schools, the parent who registers the student is placed in Skyward as “Family #1”. Family #1 is the custodial parent/guardian who has access and decision-making authority in the school for the student unless a court order is presented that supersedes the prior documentation. The custodial parent is responsible for providing a certified copy of the decree of divorce (§53G-8-204). If written consent from the custodial parent is obtained, the school may give the non-custodial parent equal access in the situations listed (but not limited to) above, but the school is not required to do so. This written consent should be signed and placed in the student’s cumulative folder, along with the divorce decree. Where the divorce is not amicable, the school may not want to get in the middle of the fray.
The following definitions are provided to help schools navigate appropriate access to students (§30-3-10.1):
- Custodial responsibility includes all powers and duties relating to care-taking authority and decision-making authority of the child including: physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child.
- Joint legal custody means the sharing of rights, privileges, duties, and powers of a parent by both parents, may include the award of exclusive authority by the court to one parent to make specific decisions, does not affect the physical custody of the child except specified, is not based on equal or nearly equal physical custody and often requires a primary physical residence of the child, and does not prohibit a specific primary caretaker and one home as the primary residence.
- Joint physical custody means the child stays with each parent overnight more than 30% of the year, and both parents contribute to expenses, can mean equal or nearly equal periods of physical custody and access to the child by each parent, may require a primary physical residence to be designated, and does not prohibit a specific primary caretaker and one home as the primary residence.
Non-Custodial Parent Requests
The school controls access to the child during the school day. Legally, neither custodial nor non-custodial parents have a right to visit with children during school hours, lunch, activity periods or visit in classes. Schools may, and usually do, accommodate parents in their requests consistent with the law, valid court orders, and the best interest of the child (§30-3-33).
The following administrative guidelines should be followed when a school receives a request from a non-custodial parent of a minor child for the following:
Request to speak with a minor child.
- If a school permits parents to visit with their children during school hours, and there is a court order regarding custody, a non-custodial parent may only have access to children with the written permission of the custodial parent or as specifically authorized in the court order. It is the responsibility of the custodial parent to provide the school with satisfactory verification of the permission and/or a copy of the custody decree.
- If the principal allows non-custodial visits with written permission of the custodial parent, the principal shall adhere to the following:
- The visit shall take place at the discretion of the principal or principal’s designee.
- The primary responsibility of the school is the child’s education. The principal will consider the potential disruptive effect of a school visit on the child and other students.
- The principal will determine, in private, if the minor child is willing to speak with the non-custodial parent.
- The child shall not be forced to speak with the non-custodial parent if he/she expresses a desire not to do so.
- The conversation shall take place within the sight of an administrator or teacher and in a manner that will not disrupt class instruction.
Request to remove minor child from the school campus.
- A non-custodial parent shall not be allowed to remove a minor child from the school campus during times when the child is under the control of the school unless the non-custodial parent has first requested permission from the principal and shown to the principal a duly executed and certified order from a court of competent jurisdiction, which expressly permits the non-custodial parent to remove the child from the school campus.
- The principal shall contact the custodial parent to determine if he/she has a court document superseding the one presented by the non-custodial parent.
- An order granting “reasonable visitation,” or words of similar meaning, or an order which grants visitation during times when the child is not in the control of the school is not sufficient to permit a non-custodial parent to remove a minor child from the school’s campus.
- The principal shall make the final determination of the adequacy and sufficiency of the submitted court order.
- The principal need not release the child immediately upon presentation of the request or court order.
- The principal shall have a reasonable time to consider the request.
Request to inspect and/or review the education records of a minor child.
- A non-custodial parent has the right to written education records (FERPA). A new records request form must be completed for each request. Education records do not include police records maintained by the school resource officer.
- A school may presume that the non-custodial parent of a minor child has authority to inspect and review the education records of the child unless the school/principal is provided with evidence that there is a legal binding instrument or court order which provides to the contrary.
- The school principal shall contact the custodial parent to determine if there is a court order or other legally binding document prohibiting the non-custodial parent access to the child’s education records.
- A school may not allow a non-custodial parent access to the child’s education records if a court has issued an order which limits the non-custodial parent’s access to the child’s educations records; and the school has received a copy of the court order or has actual knowledge of the court order (§53G-7-204).
- Access to a student’s record granted to a non-custodial parent includes electronic access to academic and attendance records unless court documents indicate otherwise.
Request to attend parent-teacher conferences, school activities, or consult with their child’s teachers.
- Non-custodial parents have only the right of access to written records under the Family Education Rights and Privacy Act. In all other respects they have only those rights which any other member of the public may have. They do not have the right to attend parent-teacher conferences, consult with teachers, or visit with children during school hours, lunch, activity periods, or class.
- They may attend activities, such as school plays to which the general public is invited, but may not be given special access to children on those occasions.
- If the school and the teachers have the time and resources to conduct a second parent-teacher conference, they may (but are not required) do so with written permission from the custodial parent.
Request to have their name, phone number, etc., recorded on the child’s education records and/or be informed of the child’s school progress and school activities.
- Non-custodial parents do not have the right to have their name, phone number, etc., recorded on the child’s education records. The school has no obligation to communicate information about school progress or school events to non-custodial parents.
- Non-custodial parents do not have the right to access Skyward or any other electronic student information system. Access to these systems constitute a custodial concern and therefore, only after written or ‘pseudo’ approval through Skyward is given by the custodial parent (Family #1), may the non-custodial parent be added.
In situations where legal custody cannot be verified or staff cannot determine who has legal authority over and access to the child, the school will allow only the person who enrolled the student to withdraw the student (Family #1 in Skyward).
School staff are prohibited from writing letters of support for parents who are involved in legal custody disputes or proceedings, nor should they be acting as a mediator for custody disputes or visitation agreements. The role of the school is to remain neutral in matters of custodial concern.
In custody issues, it is wise to require a copy of the divorce decree to be placed in the student’s file. This document clarifies custodial and non-custodial status. If the document declares joint custody, one parent is usually identified as the parent who has physical custody the majority of the time. The parent with the greater amount of physical custody is the parent who is afforded the rights of the custodial parent (usually Family #1 in Skyward, but there are exceptions).
Contact a police officer or DCFS when the parties are in conflict and cannot agree upon whom the student should be released. If any person causes a disruption on a school campus, the principal has the legal authority to require disruptive parents or other adults to refrain from coming on to school property without making arrangements through him or her. Principals can deny such persons any access to school property if there is safety, annoyance, or potential injury concerns (§53G-8-603). The principal should notify the person in writing of his or her decision about their access.
The term "parent" is defined as including natural parents, a guardian, or an individual acting as a parent in the absence of a parent or a guardian (34 CFR § 99.3 "Parent"). The Department has determined that a parent is absent if he or she is not present in the day-to-day home environment of the child.
Accordingly, a step-parent has rights under FERPA where the step-parent is present on a day-to-day basis with the natural parent and child and the other parent is absent from that home. In such cases, step-parents have the same rights under FERPA as do natural parents. Conversely, a step-parent who is not present on a day-to-day basis in the home of the child does not have rights under FERPA with respect to such child's education records. There are no rights for the non-custodial step-parent. Family Policy Compliance Office (FPCO August 20, 2004).
Parent and Non-Custodial Parent Notifications
Notification to the parent of an injured or sick child: A public school shall notify the custodial parent and, if requested in writing by a non-custodial parent, make reasonable efforts to notify the non-custodial parent of a student who is injured or becomes ill at the school during the regular school day, if:
- The injury or illness requires treatment at a hospital, doctor’s office, or other medical facility not located on the school premises;
- The school has received a current telephone number for the party it is required to notify or make reasonable efforts to notify.
This requirement does not apply to a non-custodial parent forbidden to have contact with the student under a court order or similar procedure. The custodial parent is responsible for providing the school with the non- custodial parent’s status (§53G-9-202).
Suspension and expulsion procedures: A school shall notify the custodial parent, and if requested in writing, by a noncustodial parent the procedures for the suspension, expulsion or denial of a student’s admission, if:
- It does not apply to that portion of school records which would disclose any information protected under a court (The custodial parent is responsible for providing to the school a certified copy of the court order.)
- It is consistent with due process and other provisions of law
The law also requires that each student is provided a copy of a school’s discipline and conduct policy, and if there is any significant change in the conduct and discipline policy, the changes shall be distributed to the students and posted in a prominent location (§53G-8-204).
Guardianship, Durable Power of Attorney (DPA)
A student may be enrolled only by the legal custodial parent(s) or guardian(s) having physical custody through the courts. The school of residence is determined by the domicile of the student’s legal custodial parent(s) or guardian(s) or a non-custodial parent, if the parent having physical custody signs a Durable Power of Attorney, which allows the non-custodial parent the right to enroll the child at their local school. A Durable Power of Attorney signed by anyone other than the student’s legal parents or guardians does not determine the school of residence.
When a divorce decree and Durable Power of Attorney are provided to the school and the parents agree with the placement of the student, a permit will not be required and the school may enroll the student based on the non-custodial parent’s residence.