From the Courthouse Steps to the Schoolhouse Doors
By Amy A. Yu and Gail M. Towne
Pursuant to Michigan Court Rule 2.602(A)(3), the Judgment of Divorce resolves all
pending claims and closes the case. If only life were quite that simple. If only all problems
could be resolved by a simple document. However, after the client’s case is “closed” and the
divorce is “final”, parents still have lives to lead, children to raise and daily decisions to make.
Many of these decisions will involve children’s educational careers and with the continuing trend
of “joint custody”, parents must make decisions together.i More often than not, the parents and
the children’s educators need guidance and sometimes court intervention. This article touches
on the interplay between custody/parenting time arrangements and educational law and
administration.
When divorced parents cannot agree on whether Sammy should be kept behind a grade or
if daddy’s girlfriend should be placed on the emergency card, what is Principal Snyder to do?
There are federal and state laws, including the Family Educational Privacy Rights Act,
Michigan’s Revised School Code and State School Aid Act that will help Principal Snyder along
the way. However, these laws generally afford both parents equal access and decision-making
rights so when Principal Snyder releases Suzy to daddy’s new girlfriend, Sassy, he is going to get
the lecture of a lifetime and the threat of an unfounded lawsuit from Suzy’s mom. School
personnel are so often put in the middle by confused and/or irate parents.
The parents and the school personnel often have great difficulty resolving these issues
because they are uninformed of the laws. They usually need help from a third party.
Unfortunately, that help often comes after parents and the school has butt heads. These issues
can often be addressed in a custody order. The Judgment of Divorce or custody order cannot
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possibly dictate every issue that can arise and “close the case”. However, the order can solve a
great deal of issues if properly contemplated. Some points to consider educating our client’s
about and include in the order consist of residency, decision making, the release of records and
the release of the child.
Residency
A child’s place of residence should be included in all custody orders. If there is no court
order on record to defer to, a child can be enrolled in the school district of either parent’s
residence, regardless of the custody arrangement. A child’s ‘legal residence’ for purposes of
education may not be that residence as set forth in the court order. Michigan’s Revised School
Code and State School Aid Act permit a child to enroll in any school district where either parent
resides, whether or not that parent has custody of the child.ii A child does not have to reside
with a parent in the district to enroll there so long as at least one of the child’s parents lives there.
The child is then considered a resident of that school district where he or she is enrolled.iii
However, Michigan’s Child Custody Act states that all orders providing for some type of
joint custodial arrangement must include language regarding the residence of the child. Further,
joint custody orders must state “[a] parent whose custody or parenting time of a child is governed
by this order shall not change the legal residence of the child except in compliance with section
11 of the ‘Child Custody Act of 1970’, unless some other agreement is made between the
parties.iv Such language is required whether the joint custody is ‘legal custody’ or ‘physical
custody’. The Child Custody Act further provides that all custody orders for joint custodial
arrangements must contain language that a parent is prohibited from moving more than 100
miles from the “child’s legal residence” without a court order allowing such a move.v If only
one parent has custody of the minor child, that child’s legal residence must be set forth in the
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order to provide guidance to the parents and any involved school. If there is no legal residence
designation, the school is bound to assume that the child’s legal residence is with either parent.
Access to School Records
The issue of accessing a child’s school records comes up frequently in the practice of
family law. What are “school records” and who has the right to receive and/or review these
records? “School records” include, but are not limited to school records, notification concerning
meetings about the minor child’s education, medical records, dental records and daycare provider
records.vi The Federal and State laws give both parents rights, so if any restrictions are necessary,
it must be included in a court order and the school must have the court order on file.
The Family Educational Privacy Rights Act, commonly referred to as FERPA, gives both
parents an equal right to access their child’s school records.vii FERPA classifies ‘‘parent’’ as ‘‘a
parent, a guardian, or an individual acting as a parent of a student in the absence of a parent or
guardian."viii Additionally, third parties can access school records by subpoena or even a court
order without the consent of the other parent so long as the school makes a reasonable effort to
notify a parent before complying with a subpoena. ix
Michigan law concurs with FERPA by giving a non-custodial parent equal access to
school records. Section 10 of the Child Custody Act provides that “[n]otwithstanding any other
provision of law, a parent shall not be denied access to records or information concerning his or
her child because the parent is not the child’s custodial parent, unless the parent is prohibited
from having access to the records or information by a protective order.”x The Revised School
Code states that the school cannot release records or information of Parent A’s contact
information upon an inquiry or demand of Parent B if Parent A has a Personal Protection Order
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(PPO) against Parent B and the PPO denies access to the protected parent’s contact information;
and a copy of the PPO is on file at the school.xi
If any restrictions about school records are necessary or agreed upon by the parties, it
must be in a court order. Additionally, the school must be notified of the restrictions and a court
order must be filed with the school. If mom does not want Sassy to pick Suzy up from school,
then the custody order must specifically state who Sassy may be released to, otherwise, the
school may proceed on dad’s instructions. Schools do not have to honor any parent’s verbal or
written demands. Further, if the school does not have a copy of the order, they do not have to
execute any restrictions even if court ordered. xii All custody orders must be filed with the school
to give proper notice of any restrictions.
Parental rights at school
Parents also have broad rights to direct their children’s education and educational
environment.xiii Michigan’s Revised School Code provides that as long as the parent is in some
way “responsible for the care and custody of the child” the school shall presume that both
parents have the right to direct their child’s education and that it is their fundamental right to do
so.xiv “Important decisions” that both parents are entitled to make include: enrolling a student in
a specific educational program, and some other common issues often overlooked in court orders,
such as providing for the pick up/drop off or release of the child, the signing of permission slips
and/or waivers, the completion of emergency contact cards, and medical directions/medication
dispense.xv
Section 1137 of Michigan's Revised School Code additionally provides allowance of the
following:
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(a) Review the curriculum, textbooks, and teaching materials of the school in
which
the pupil is enrolled at a reasonable time and place and in a reasonable
manner.
(b) Be present, to a reasonable degree, and at reasonable times and subject to
reasonable restrictions, controls, and limits, to observe instructional activity in a class
or course in which the pupil is enrolled and present. As used in this
subdivision,
"instructional activity" does not include testing.
Therefore, as far as the school is concerned, in the absence of a court order stating
otherwise, both parents shall have the rights as set forth above. Without a clear directive set
forth in a court order, the school may release Suzy to Sassy upon dad's consent and may dispense
Concerta to Sammy upon mom's instruction. A dispute between joint legal custodians is
irrelevant to the school unless it says otherwise in a court order on file.
Custody orders must be very clear with regard to educational decisions, particularly if the
parents have conflict. Schools are not bound to defer to either parent unless they have written
notice in the form of a court order on file. Attorneys must be educate their clients of the laws
and draft appropriate custody orders, so that a school employees are not stuck in the middle of
custody disputes.
i
MCL 722.26a.
MCL 380.1148a.
iii
MCL 388.1624b; Gregory, Gordon A., Dealing with Child Custody Issues in Schools, MEMPSA Key Issues Vol. XII, No. 3 (March 2006) at
11;
ii
iv
MCL 722.31.
MCL 722.31(1)(2)(3), (5).
MCL 772.30
vii
20 USC 12328 and 34 CFR 99.
viii
34 CFR 99.3.
ix
34 CFR 99.31(a)(9)(i)-(ii).
x
MCL 722.30.
xi
Gregory, Gordon A., Dealing with Child Custody Issues in Schools, MEMPSA Key Issues Vol. XII, No. 3 (March 2006) at 9; MCL 380.1 et
seq
xii
MCL 380.1137a.
xiii
MCL 380.10
xiv
MCL 380.10
xv
Gregory, Gordon A., Dealing with Child Custody Issues in Schools, MEMPSA Key Issues Vol. XII, No. 3 (March 2006) at 8; Lombardo vs.
Lombardo, 202 Mich App 151; 507 NW 788 (1993).
v
vi
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