The Non-Custodial Parent’s Right to Educational Records – By: Betsey Helfrich

Published by MARE, May 2012

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” that holds this right.  This article will discuss the access rights of non-custodial parents to student records.

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 parent of a student and includes 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.  FERPA does not delineate in the definition of “parent” between parents with full custody, joint custody, legal custody, or those without custody at all.  Indeed, the FERPA regulations make it clear that the right to access educational records is not conditional upon having the legal or physical custody of your children.  The regulations specifically state, “an educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution 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, pursuant to FERPA, both natural parents regardless of their rights as custodians, have access to their children’s educational records unless there is a legally binding document which specifically revokes their rights.

Missouri law also clarifies that both custodial and non-custodial parents are entitled to their children’s records. Under Missouri law, unless a non-custodial parent has been denied visitation rights, that parent shall be entitled to receive records including, “any deficiency slips, report cards or pertinent progress reports regarding that child’s progress in school.”  Section 452.376 RSMo.  Accordingly, pursuant to Missouri law and FERPA, a non-custodial parent who may not have been awarded any custodial rights but who has visitation rights with their child is also entitled to full access to their son or daughter’s educational records.  Only if the natural parent’s rights have been terminated or they have been denied visitation is it okay to deny a request for access to records to this parent.

In the Fall of 2011, the Eighth Circuit, in Schmidt v. Des Moines Public Schools, examined claims by a mother who was joint legal custodian of her children who sued the Des Moines Public School District alleging, among other things, that the District unlawfully denied her access to her children’s educational records.  This case focused on a contentious divorce between a mother and father and their long-running dispute over the education and custody of their three minor children.  An Iowa state Court had awarded Mr. and Mrs. Schmidt joint legal custody of their children and granted Mr. Smith primary physical custody and care of the children.  Mrs. Schmidt was given visitation periods with the children.  In denying Mrs. Schmidt’s claim that the District violated her right to access information about her children, the Court stated, “it is open to question whether and to what extent the fundamental liberty interest in the custody, care, and management of one’s children mandates parental access to school records.”  In this case, the Court found that the District’s attendance clerk’s one-time refusal to tell Mrs. Schmidt why one of her children was absent from school, combined with a coach’s referral to her ex-husband for information about her children’s swimming activities, and the schools’ refusal to send her home some school projects was so minor and sporadic that it did not rise to a substantive due process violation.   The Court noted that the school had fulfilled at least some of the Mrs. Schmidt’s requests for information about her children and gave her access to an online records system that displayed her children’s grades, assignments, and attendance records, and thus, Plaintiffs’ claim that the District deprived her of a fundamental liberty interest were denied.  Similarly, another Court has also found that there was no substantive due process violation when a school did not engage in an “unconditional refusal” to show a child’s records to his parent, but instead made the records available on other occasions.

Sometimes there are situations where a parent may be fearful that their ex-spouse may misuse access to student records as a means to determine his/her child’s current address.  In these situations, where you are on notice that there is reason to protect a child’s current address from a parent in order to protect the safety of the child, do not respond immediately to a parent request for access to records.  Pursuant to FERPA, a school district has 45 days in which to make records available following a parent request for access.  Utilize this 45 day window under FERPA to notify the custodial parent that a request has been made and during this time, the custodial parent may go to court and ask that the court order that all school records which include the address of the custodial parent and/or children be redacted.  Support for this is found in Missouri Revised Statute Section 452.376 which provides that if a noncustodial parent has been granted restricted or supervised visitation because the court has found that the custodial parent or the child has been the victim of domestic violence or abuse by the noncustodial parent, the court may order that the reports and records made available pursuant to Section 452.376 RSMo not include the address of the custodial parent or the child. Accordingly, if you receive an order from a court which indicates that the address or location of a child must be protected from a parent, be sure that extreme care is taken to redact any and all addresses or locating information from the student’s records before disclosure is made.

In summary, unless a natural parent’s rights to visitation to their children have been terminated or denied, pursuant to Missouri and Federal law, that parent must be given the same access to their student’s educational records as the parent who has custody of the child.  Training building principals, teachers, and front office employees regarding these rules can help prevent unnecessary claims and ensure compliance with the law.

© 2012 Mickes Goldman O’Toole, LLC

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