Custody, records and access: case studies

Custody, records and access: case studies Hollie F. Reedy, Esq. Director of Legal Services, Ohio School Boards Association

Resources • Ohio general attendance and tuition statutes: R.C. 3313.64, .649, .65 • Ohio tuition statute: R.C. 3317.08 • Custody: R.C. Chapter 2151, 3109, 5103 • Birth documentation: R.C. 3313.672 • Ohio special education attendance and tuition statutes: – R.C. 3323.091, 3323.13, .14, 3323.143

Case study #1 • Abdul is six years old. He lives in a foster placement in the custody of children’s services. His mother has failed for two years to correct the neglect problems noted in her case plan with children’s services and a permanent custody proceeding is pending in Juvenile Court.

Abdul’s case • What do we need to know to determine where he may enroll in school and which district is responsible for the payment of tuition? • Where does the child live? • Where do the parent(s) of Abdul live? • Who has custody of Abdul? • What is the status of the court proceedings? • Does Abdul receive special education? • Where is the court order?

Types of custody • Temporary custody/Legal custody – R.C. 2151.011 – Temporary custody usually between 30-60 days between court hearings – Same rights as legal custody order, check court date – Legal custody does not extinguish parental rights – Legal custody does give custodian right to physical care,custody,control of child, make decisions for child, sign authorizations for child.

Types of custody • Guardianship (R.C. 2111.02) – Granted by a probate court – Voluntary – Can be revoked by parent

• Permanent custody (R.C. 2151.011) – Granted by juvenile court – Voluntary surrender or court may terminate parental rights – Child available for adoption

Case study #2 • Rayanne is 17 years old. She is in the custody of children’s services and is placed in out of county foster care with her 2-year-old son. Her case plan goal calls for transitioning her to independent living because she will be 18 in about 3 months. She is about two years behind in school and not very interested in it.

Rayanne’s case • • • • • • •

What do we need to know? Where does Rayanne live? Where does her parent(s) live? Who has custody of her? Where will she reside once she turns 18? What will happen after she turns 18? Is Rayanne an emancipated minor? – Does this matter?

Answers instead of ?’s • 3313.64(B)(2)(a) applies • Then move to (C)(2)(a). • Child attends school in district where placed in care. • Tuition is paid by district where parents reside. • After school year ends, child will be an adult if she returns next year. Is she self-supporting? Child becomes a resident of the district in which she resides, will no longer bill mother’s district.

Adult vs. emancipated • Age of majority (R.C. 3109.01) – 18 years old & reside with parents? • Entitled to attend in parent school district

– 18 and “support self by own labor?” • Entitled to attend in district in which adult student resides.

– Rights transfer to adult student

• Emancipated minor – Common law concept. No form, order, or proceeding. – PARENTS release claim to child’s earnings and services. Children do not emancipate selves. – May occur by event: marriage, enlisting in military, parental consent.

Rayanne’s daughter • Rayanne’s child is now 5 and ready to enroll in school. Rayanne is now 20, and her child lives with the child’s father, to whom she never was married, and grandmother. They live in another school district. Father is, despite living with his mom, fairly responsible and wants to enroll the child.

What do we need to know? • Did Rayanne give dad or grandmother legal custody? • Did Dad ever acknowledge paternity, pay child support, or file for custody/visitation? • Is Dad’s name on the birth certificate?

Mommy’s baby, Daddy’s maybe • Definition of “parent” 3313.64(A) • Unmarried mothers have legal custody unless/until something changes. (3109.42) • Child support obligation • Strong argument children may attend in where father and child reside. – What if…no determination of parentage? – What if…name is on the birth certificate? – What if…Dad is or was paying child support?

Acknowledgement of paternity • Several different ways this can happen. – At the hospital (3705.09 birth certificate, 3727.17) • Unmarried father must sign acknowledgment of paternity affidavit before his name can be placed on the birth certificate, 1998 amendment.

– In juvenile court (3111.06) – In child support enforcement agency process (3111.38) – In an action to contest parentage (Ch 3111) – Did you know: • Interfering with paternity establishment is an M1 crime? (3111.99)

Case study #3 • Alissa, 7, and Roger, 6, are siblings placed together in a long-term foster home. Parental rights of the biological parents were not terminated but it is unlikely they will be able to care for the kids any time soon. They move and disappear and sometimes do not visit for months. Alissa is severely emotionally disturbed and Roger is legally blind, moderately developmentally delayed, and has serious behavior issues due to abuse for which he is being treated by a psychiatrist and is on medication. Kids have IEP’s.

Alissa and Roger’s case • What do we need to know? • Do the children reside in the same school district as their parent(s)? • Where did parents live when custody was removed? • Where do parents live now? • What is the long term goal of the PCSA?

Roving tuition obligation • Tuition obligation for special education students can move with parent residence changes. • Process is not automatic • Present evidence to ODE, ODE may modify determination of who is responsible for payment of tuition. • District responsible would be district in which parent currently resides. • If insufficient evidence, initial district will continue to be responsible.

PPLA • Planned permanent living arrangement (2151.353(A)(5)) • Used when adoption is not going to be used. Might be appropriate in this case. • Custody goes to agency, usually long term foster placement from there. • Factors must be considered • • • •

Adoption not in best interest of child, or Child retains positive relationship with parent, or Child unable to function in family like setting, or Child 16 or older and does not wish to be adopted

Case study #3 • Shasta was abandoned by her mother, who is an addict, and at 15 years old, has been living with friends off and on and staying on the streets. She has no address of her own currently. Her mother told her she cannot take care of her anymore. Her mother also has no address and was sleeping at a nursing home but does not live there.

Shasta’s case • • • • • •

What do we need to know? Is Shasta still in her mother’s custody? In what district is the child living? In what district did her mother last reside? Are Shasta and her mother homeless? Is Shasta an emancipated minor? • What if this cannot be determined?

Homeless children • McKinney Vento Homeless Assistance Act – Child entitled to attend school where lost housing or where currently staying for the rest of the school year. – Homeless means (42 USC 11302 and 2004 nonregulatory guidance): • Lacking a fixed regular and adequate nighttime residence • Sharing housing of other persons due to loss of housing, economic hardship, or similar reasons (“doubled up”) • Living in motels, hotels, trailer parks or camping grounds lacking other accommodations • Living in shelters • Awaiting foster care placement • In some cases, those displaced by natural disasters

Homeless children Homeless means (con’t): - living in cars, parks, public spaces, abandoned buildings, bus or train stations - migratory children could qualify if living in the above conditions What do you have to do? Admit child(ren) if homeless with or without records in the school of origin or where they now live. Even if no birth, immunization, custody residency records.

Homeless children • Disputes over enrollment: – Enroll immediately while dispute is pending. – Don’t forget to inquire about housing status. – Who is your homeless assistance liaison? – What is the district’s process for resolving disputes?

Case study #4 • Brandon’s mother and father kicked him out and do not want him back. He is 16 years old. Brandon lives with his grandmother in a different school district but his parents will not give her custody because they do not want anyone to think they lost custody of their child.

Brandon’s case • What do we need to know? • Why is Brandon so horrible that his parents kicked him out? • Is Brandon living with his grandmother? • If Brandon is not in his grandmother’s custody then may he enroll in school? • Is Brandon emancipated? • How could he be admitted?

Choosing exceptions • How could Brandon be admitted to school where he resides? – 3313.64(F)(11) “grandparent exception” – 3313.64(12) “good cause exception AKA superintendent agreement” – 33109.52 Grandparent affidavit

Case study #5 • Mom and Dad divorced in 2005 and Mom got custody of the two children. The kids have lived with their Dad for two years now and the district has just noticed that Dad does not appear to have custody.

Divorced parent’s case • What do we need to know? • Is there a certified copy of the divorce decree in the student file? • Where does mother reside? • What does the decree say about custody? • • • • •

Shared parenting? Shared parenting with limitation? Sole legal custody? Custody for school purposes? Have there been any modifications to the decree since it was adopted? • Do you hate incomplete scenarios?

Reading court documents • Look at the caption. – Name of court, county, division and branch. • Why is this so helpful?

– – – –

Names of parties. What kind of action is it? Name of judge/magistrate. Time stamp, date it was filed in court. • No time stamp? Uh-oh.

Reading court documents • Look for signatures. – Why is this so important?

• Look for service of process proof. – Why is this so helpful?

The Clerk of Courts and You • What can you do to verify information? – Call Clerk of Courts of the court that issued the order. – Ask about most recent order – May obtain copies of orders – Most court orders are public records; juvenile court orders are not. – Many clerks will cooperate with school districts.

How do I find this stuff? • • • •

http://www.ohiojudges.org/ Click on “Links” then “Ohio Courts” Google “X county clerk of court ohio” Most of the records you will be looking for are not online; this does not mean they are not public records or that they won’t help you.

Domestic law for school employees • Three general types of allocations: (R.C. 3109.04) • Sole custodian and residential parent • Shared parenting • Shared parenting with limitation for school attendance purposes • Divorce decrees are written in many ways.

Reading the divorce decree • “Sole residential parent and legal custodian” – This is the parent whose residence determines where the child may attend school.

• Shared parenting – Child may attend school in the district where either parent resides

Shared parenting • Generally, under school attendance law, child may attend school where either parent resides. However most decrees now have limitation. • Shared parenting with limitation: – Example: • “Both parents will have shared parenting and will share parenting time according to the schedule attached hereto. Mother is hereby designated as the sole residential parent and legal custodian of the minor children for purposes of school attendance.” • Effect of this provision limits district in which child is entitled to attend school tuition-free to the district in which the mother resides.

Separation issues for schools • After parties agree to end their marriage but before a temporary order allocating rights and responsibilities has been filed (or other temporary order), BOTH parents have equal rights to the child. • Either parent’s residence may be used for school attendance purposes. Why? • Keep asking for the order. • Schools can get drawn into the drama; how to stay out as much as possible.

Tuition case • Grosso v. Boardman Local Schools – Out of state parents gave legal custody to Ohio relatives and insist child is entitled to free attendance. Boardman disagrees. Case is on appeal now. Stay tuned for further news.

How to end? • • • • • •

No way to cover every situation. Build a framework for understanding. Remember your resources. Remember the mission. Ask for help. Keep smiling. By late October things should have calmed down…right?

Resources • ODE area coordinators. • Anderson’s Ohio School Law Guide, Baldwin’s Ohio School Law, other publications. • OSBA web site: www.osba-ohio.org OSBA is your member resource. • School counsel. • Your EMIS association, OAEP. • Your ESC. • The magical Internet.