One of the most common challenges faced by school administrators relates to the handling of child custody & visitation orders. It is not uncommon for one parent to demand that the school deny the other parent access to the student and/or the student’s records based on an ongoing custody battle or a custody/visitation order.
A judgment/order is binding only on the litigating parties (typically, a school would not be named as a third-party to the custody litigation), and enforcement of judgments/orders is the domain of the parties and the court, not the responsibility of the school.
For example, if a parent’s contact with a child at school violates a visitation order, it is not the school’s responsibility to enforce the order; rather, it is the other parent’s responsibility to bring this to the attention of the court, and it is the court who has authority to impose consequences on the parent for violation of the order. While schools are advised to give notice to the other parent when a visitation order is being violated, schools are generally discouraged from putting themselves in the position of enforcing visitation orders or judgments.
Insofar as the school is concerned, the general rule is that any parent has the right to have contact with their child at school and has the right to access the child’s school records, subject to the following exceptions:
- Where there is a court order or judgment explicitly denying a parent access to the child and/or the records;
- Where there is a court judgment stripping a parent of all custodial or parental rights; or
- Where the child has reached the age of majority (18) and the parent seeking access to the records cannot establish that the child is a “dependent” for income tax purposes.
There are legal risks associated with wrongfully denying a parent access to their child or the child’s records. A parent who is wrongfully denied such access may have a legal cause of action against the school for breach of contract, intentional or negligent infliction of emotional distress or even false imprisonment (of the child). FERPA penalties (including withdrawal of federal funding) are also a potential risk.
Handling visitation/custody issues can be quite complicated and there may be situations that justify deviation from the general rule (e.g., in the interest of the student’s safety). Administrators are encouraged to seek legal guidance before denying any parent the right to access a child or the child’s school records.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.