Why Can't We Just All Get Along – Schools and Family Law Disputes

By Melissa Thiel Collar, Legal Counsel, Green Bay Area Public School District

As education professionals, it is not uncommon for others to seek your input and advice regarding students you are entrust­ed to educate. Outside of a child’s parent or guardian, educators typically interact with a child more frequently than other adults. 

Increasingly, educational employees are asked to become involved in family law mat­ters such as custody hearings or hearings re­garding the physical placement of the child. This involvement may come in many forms, including a request from the parent to write a letter for a custody hearing that provides information about the parent’s involvement at school or the child’s appearance and preparedness for school during the parent’s periods of physical placement; a request by a child’s guardian ad litem (“GAL”) for student records or to complete a “survey;” or a subpoena by a parent’s attorney to testify at a custody or divorce hearing.  Regardless of the source of the request, the request itself often places school staff squarely in the middle of the parents’ family law dispute, thus complicating and perhaps undermining your role as an educator and administrator.  

Understanding Family Law Terms.

With respect to the impact of family law matters in the school, it is important to understand a few basic family law concepts.  The “physical placement” of a child is thecondition under which a parent has the right to have a child physically placed with him/her.  When the parent has “physical placement” of the child, the parent has the right and responsibility to make routine daily decisions regarding the child’s care which are consistent with major decisions made by the parent(s) having legal custody.   A child is entitled to meaningful periods of physical placement with both parents unless the court finds that physical placement with a parent would endanger a child’s physical, mental and emotional health.  Wis. Stat. §§767.001(5) and 767.41(4). If the court makes this determination, a parent may be denied periods of physical placement with the child.   

When “legal custody” is granted to a parent, the parent with legal custody of a child (other than a county agency or licensed child welfare agency) has the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.  “Major decisions” include, but are not limited to, decisions such as authorization for non-emergency health care and choice of school. Wis. Stat. §767.001(2m).  Parents can be awarded “joint legal custody” where both parties share legal custody of the child and neither party’s legal custody rights are superior to other.  Conversely,an award of “sole legal custody” provides that one party has exclusive legal custody of the child. Wis. Stat. §§767.001(5) and 767.41(4).

The concepts of physical placement and custody are significant to the school setting as discussed below.  

Student Records – Who has the Right to Review and Request?

As an administrator, you likely have experienced a parent’s or attorney’s request for a student’s records to be used in a family law matter.  These records are of particular relevance in a custody dispute.  For example, a student’s attendance records may be relevant to establish that the other parent is unreliable in getting the student to school on time.  A child’s homework grades may reveal that the student has incomplete work on the days of the other parent’s periods of physical placement.  In a secondary school setting, a student’s email communications with the other parent, using the student’s district-provided email address, may reveal relevant information regarding the custody dispute.  In Wisconsin, a parent is entitled to access student records, unless: (1) a court order pursuant to Wis. Stat. §767.41(7) denies the parent periods of physical placement with the child; or (2) a court order expressly denies the parent access to the child’s education records.  Wis. Stat. §118.125(2)(m). 

Should you receive a request from a parent’s attorney or a GAL for a student’s records, a parent must first authorize the release of the student’s records to these individuals.  The authorization must be in writing.  Only one parent’s permission is required to disclose a student’s records to another person - both parents need not agree unless required by a court order.

In providing student records for a family law matter, consider the following:

1. Where one parent has requested student records, consider providing the records to both parents.  In doing so, you help to alleviate any appearance of providing information to one parent over the other or “taking sides” in the dispute.  In addition, by doing so, there is no dispute as to what information may be contained in the records.  It is likely the case that if you do not provide the records to both parents and the parent who did not request the records learns that the other parent has records he or she does not have, you will receive the same request in due time from the other parent. 
2. Make sure all information required to be redacted has been removed from the records.  For example, names of other students should be redacted.  In addition, Wisconsin’s new Safe at Home Program prohibits the release of a participant’s address to any individual. Wis. Stat. § 165.68.

A Parent’s Right to the Student during the School Day.

Parents frequently request schools to police and implement their physical placement schedules.  As a result, it is likely that you have received or will receive a call from one parent indicating their unhappiness with you because you allowed their student to have lunch with the other parent on a day that it was not the other parent’s day with the student, one parent’s request to prohibit the other parent from chaperoning a field trip because it happens to fall on a day that the other parent does not have physical placement of the student.   

A physical placement order governs the placement for the parents, not the school.  A court order could restrict a parent’s right to access the child at school or from attending school opportunities or events.  However, absent a court order, a parent has the right to participate in school opportunities and events.  

Having a board of education policy in place that makes clear to parents that the school will not police their custody order or schedule is key.  For example, the Green Bay Area Public School District’s policy provides that the District will “maintain strict neutrality between parents/guardians who are involved in an action affecting the family, unless otherwise directed by a court order, a parenting plan, subpoena or other court document.[1]”  The policy further indicates that the District is not “responsible for monitoring, interpreting and/or enforcing any physical placement order/schedule. If a dispute occurs on District premises regarding physical placement, the District will contact law enforcement authorities to assist the parents/guardians in the dispute.”

Administrator or Educator Involvement in Family Law Matters – the Pandora’s Box.

Family law attorneys advise clients in divorce or custody matters that they should become involved in their child’s education so their child’s teacher may be called to tes­tify on their behalf. Testimony by a child’s teacher is perceived to be persuasive and important in family law matters. See, Cordell, Joseph, “Want Custody of Your Kids? Get Involved with their School!” (March 8, 2012); Hacker, Nathan A., “Child Custody and Teacher Testimony: Getting the Teacher on Your Side,” (December 22, 2011).  Before you are even contacted by an attorney, steps may be underway to arrange for your involve­ment in the matter.

Should you be aware that a student’s par­ents are involved in a custody dispute, you may want to keep the following in mind:

1. What are you communicating to the parent(s)? Written documentation is very powerful in a court proceeding. A parent may be communicating with you in writing so the materials can be used in a later court action. Be aware of what is in your communications. A communication as simple as “Johnny does well when he is with you” could be construed as you taking a position that Johnny does not do well with the other parent.
2. If you provide a written statement to a parent, GAL or an attorney, chances are good that you will end up being subpoenaed to testify.  Any written statement you provide, whether to the parent, GAL or attorney, is likely to be considered “hearsay” and would not be admissible for the truth of the matter.  Thus, if your letter to a parent stated that you have concerns regarding the student’s unusually high tardy rate on Tuesdays and Thursdays and the parent wants to establish that the student’s tardies are unusually high for students in that grade, you would be required to testify to that statement before the judge or court commissioner. 
3. As much as possible, treat the child’s parents equally. What you do for one parent, attempt to do for the other.
4. There are no “off the record” conversations.  Whatever information you provide to a parent, GAL or attorney “off the record” will likely cause you to be subpoenaed to testify in the matter if it is relevant and useful for their case.   Just as with student records, before you can speak with a GAL or attorney, a proper authorization must be on file.
5. You are not legally required to meet with a parent’s attorney. Consider whether your voluntary meeting would cause you to be biased in the family matter. What would the purpose of this meeting be? Is there an alternative arrangement that can be made, such as the attorney providing the district with the autho­rization to receive student records in lieu of meeting with you? 

If you must testify, remember the following:

1. Testify just to the facts. The attorney may push you to offer a position as to what is the best placement for the child. It is not your role to take a position on where the best placement for the child is or what custody arrangement the court should impose.
2. You know the child as the child’s administrator. Your testimony should be focused on the child’s classroom performance and achievements.
3. Answer only the question asked. Listen carefully. Do not volunteer additional information. However, do not be ob­scure or difficult in your testimony.
4. You will take an oath to testify truth­fully. If you do not know the answer to a question, it is okay to say so.
5. Being involved in a student’s family court matter or waiting to be a witness at a hearing may result in your own wit­nessing of very personal details regard­ing the parent’s private relationship. It is important to treat this information professionally, discreetly and to stay unbiased.

Conclusion

Regardless of the outcome of the family matter, you should have a productive and positive relationship with both parents. Your school building is likely a refuge for the student during what may be a difficult period.                   

* This Update article was written by Attorney Melisa Thiel Collar.  The views expressed herein are exclusively those of Ms. Thiel Collar.  This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members.  It should not be relied upon as legal advice.  You are encouraged to contact your district legal counsel should you require legal advice regarding this topic.

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