Published by MARE, November 2013
The right of parents to review their children’s educational records is an important right protected by Missouri and federal law. However, sometimes disputes arise regarding who is considered a “parent” who holds this right. Under the Family Educational Rights and Privacy Act (“FERPA”), parents must be given the opportunity to inspect and review their children’s education records. 34 CFR § 99.10. FERPA defines “parent” as “a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.” 34 CFR § 99.3.
We frequently receive calls during student registration time regarding the right of a stepparent to access educational records, as stepparents are not clearly identified as a “parent” as defined by FERPA. So, what are the rights of stepparents to access the educational records of their stepchildren under FERPA? First, it is important to note that each natural parent of a child has an independent right to access educational records unless the District has been provided with evidence that there is a court order, state statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights. 34 CFR § 99.4. Accordingly, unless there is a legally binding document which specifically revokes their rights, each parent has the independent right to access records and to designate others to whom they wish to have access to their child’s records. Accordingly, a natural parent could just designate their new spouse as a person to whom they give permission to have access to their child’s educational records. However, the question arises, upon marriage, do stepparents have their own independent right to records?
The Family Compliance Office (“FCO”), the division of the U.S. Department of Education which provides guidance regarding FERPA, has squarely addressed this issue. In response to a letter received raising this question, the FCO reviewed the definition of a “parent” under FERPA and focused on the portion of the definition which provides that a parent is “an individual acting as a parent in the absence of a parent or guardian.” 34 C.F.R. §99.3. The FCO stated that this language has been interpreted to mean that a parent is absent if he or she is not present in the day-to-day home environment of the child. “Accordingly, a stepparent has rights under FERPA where the stepparent is present on a day-to-day basis with the natural parent and child and the other parent is absent from the home. In such cases, stepparents have the same rights under FERPA as do natural parents.” August 20, 2004, FCO Letter to Parent, p. 1-2. Accordingly, if a natural parent of a child remarries and the child lives with that parent and stepparent in their home at least a portion of the time, the stepparent would have FERPA rights to the child’s educational records. It is not required that the natural parent be the sole or main custodial parent for the stepparent to have rights in this situation, the child just must be living in the parent and stepparent’s home some of the time.
However, if the natural parent and the stepparent become separated and the stepparent moves out of the house and is no longer present in the home of the child, that stepparent loses their rights under FERPA to access to records. The FCO article specially addressed this issue and stated that if a stepparent is not present on a day-to-day basis in the home of the child, that stepparent no longer has rights under FERPA. Letter, p. 2. Further, if the natural parent and stepparent were to get divorced, the ex-stepparent would have no right to educational records for the child (unless granted permission by the natural parent).
As a follow up question, we are often asked whether a natural parent can dictate to whom their ex-spouse, the other natural parent, can provide FERPA rights. For example, can the natural father give FERPA rights to his girlfriend over the natural mother’s objection? The answer is yes. Unless the father’s rights to access records has been restricted or we have a court order dictating otherwise, each parent has the independent right to provide access rights to educational records to persons of their choosing. Missouri law mirrors FERPA in this regard and protects the rights of both parents to have access and make decisions regarding their child’s educational records.
In summary, stepparents who are living in the home of the child are considered “parents” under FERPA and have access rights to their stepchild’s educational records. Remember to work with your registrars and front-office professionals to remind them of the rights of parents and stepparents under FERPA and discuss how to handle contentious situations relating to school records.
© 2013 Mickes Goldman O’Toole, LLC