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Family Feud: Tips for Coping with Disputing Parents
When a student’s parents disagree about the care, teaching, and education of their child, school staff must understand each parent’s rights to effectively navigate their expectations and demands. This is particularly difficult when parents are battling over custody.
Nonmarried parents typically have joint physical and legal custody and share authority to make decisions regarding their child’s welfare. Absent a court order specifically stating otherwise, school staff should assume that both parents have all the typical parental rights even if the child lives primarily or exclusively with one parent.
Enrollment
The Michigan Child Custody Act assumes parents with joint custody will jointly decide where to enroll a child in school. Revised School Code Section 1148a allows a student to enroll as a resident in a Michigan school district if a parent or guardian resides in that district, regardless of whether the student lives with that parent. If parents have agreed that the child will enroll in a district where one parent can establish residency, the school must enroll the student.
If parents cannot agree where to enroll their child for school, they must address that through the family law process.
Access to Records
The Child Custody Act creates a legal presumption that a parent has access to school records regardless of the child’s residency. Similarly, the Family Educational Rights and Privacy Act (FERPA) and Revised School Code Section 1136 ensure parent access to school records regardless of custody or living arrangements. Only a court order can limit a parent’s access to a minor child’s student records.
Generally, if a parent asks that school staff withhold information or records from the other parent, staff should advise the parent that they may not do so without a court order. When a parent presents a protective order signed by a judge (not simply the petition for such an order), the school then must restrict access to records as directed by the court order.
One exception to the court order requirement occurs if a parent or student is a participant in the Address Confidentiality Program. A participant has an administrative address located in Ingham County and is not required to share their residential address with schools. If school officials have a participant’s residential address, Revised School Code Section 1136(7) requires that the school maintain its confidentiality.
Access to the Child
In some situations, a parent will request that school personnel limit the other parent’s access to see the child at school, pick up the child from school, or attend school events. School officials, however, are not required to police or enforce parenting time orders. Generally, school staff should apply school policy for visitors and student release to both parents. For Thrun Policy Service subscribers, Policy 3105 addresses school visitors.
If a parent presents a court order that restricts the other parent’s ability to be on campus or pick up the child, a copy of the order should be provided to the building administrator. School officials must read the order carefully to determine what it states (which may differ from what the parent has told staff) and ensure that it was signed by a judge and includes the court’s name and location. Administrators should also consider any conflicting documentation provided by the restricted parent. If two or more court orders address the same issue, the most recent order governs. Administrators with questions about the legitimacy of a court order or what it means, or how to comply with multiple orders, should contact legal counsel.
Attending Meetings
Unless expressly stated in a court order, both parents have the right to attend parent-teacher conferences, IEP Team or Section 504 meetings, and other school meetings. Refer parents to school policy and handbooks for information about how teachers and other staff will facilitate parent participation. Thrun Policy Service subscribers can reference their 5600 Series policies for this information.
Informal meetings, such as parent-teacher conferences, may be held twice so that both parents are provided access to the information. Formal meetings, such as IEP Team or Section 504 meetings, may require creative arrangements, including holding the meeting virtually for all participants or using equipment that allows one parent to participate remotely.
Responding to a Subpoena
Thrun attorneys have seen a substantial increase in the number of subpoenas for records and staff testimony at domestic relations hearings. A subpoena is a legal order to produce documents, testify, or both. If a subpoena is signed by a judge, attorney, or clerk and is lawfully served, schools and individual staff members must comply. Lawful service on school staff (who are not a party to the litigation) can be accomplished by personal service or by mailing the subpoena via certified mail, return receipt requested.
If the subpoena seeks document production, it must specifically describe the requested documents and whether copies of documents will suffice. A non-party must receive at least 14 days to comply with a document subpoena. Student records and emails about students are commonly subpoenaed and must typically be disclosed. School counselor or social worker records may be subject to different disclosure rules, so if those are subpoenaed, consider contacting legal counsel for guidance.
If the subpoena is for witness testimony, it must be served at least two days before the hearing and must compensate for the witness fee and mileage. The person serving the subpoena must take reasonable steps to keep the witness notified of any hearing postponements. If the subpoenaed witness cannot be available to testify on the date identified on the subpoena, the witness should notify the party who issued the subpoena as soon as possible. The party can either excuse the witness or request a hearing to determine whether the witness must attend. When a school witness testifies at a hearing, they must be truthful and should not demonstrate bias toward one parent.
Do not ignore a subpoena, even if you believe it was served improperly, because there may be legal consequences. If complying with the subpoena will be difficult, contact the school’s legal counsel.
School staff cannot discuss a student or the student’s records with a parent’s attorney unless the parent has provided signed consent to allow that discussion to happen. Even then, school staff are not required to talk to a parent’s attorney. If an attorney contacts school staff through a subpoena or otherwise, we recommend that the school consult its legal counsel before having any conversations with the parent’s attorney.
School staff often express a justifiable concern that they should not have to disrupt student learning to testify at a domestic relations hearing. Unfortunately, the increasing number of subpoenas received by our school clients indicates that family disputes will continue to spill over into schools and affect school staff. Educating staff members about what to do when they receive a subpoena may help to mitigate some of the resulting anxiety and interruption. If you have questions about a subpoena, contact a Thrun attorney for assistance.