Does That Complete Your Order?

Interpreting and Complying with Court Orders

 Involving Parent-Child Relationships

By Scott W. Thomas, Senior Associate

Eichelbaum Wardell Hansen Powell & Mehl, P.C.

What do you do when a parent drives to your school on a Friday at 2:45 p.m. waving ‘custody papers’ in the air and demands that the school immediately withdraw her child or prevent the other parent from picking the child up from school? Take a deep breath and convince yourself that this person did not do this just to ruin your weekend. Then, explain that you will need to review the document to make sure the school complies with it and make a copy for the school’s records. When you review ‘custody’ documents, here are some steps you can use to help you interpret them and navigate through the legalese.

 

1) Is it even an order?  Parents often bring documents that they get from their lawyers that are more “wish lists” than orders. If the heading of the document includes “motion,” “petition,” or “request” it is probably not an order but rather a parent’s wish list that is submitted to the court for consideration. Headings with the words “decree” or “order” most likely are orders.

2) Is it signed by a judge?  Scan to the bottom of the document (usually on the last two pages).  If it is not signed by a judge, it is not a binding order. Even if the document is signed by a judge, review it carefully; occasionally, the judge’s signature may simply indicate that the parents are scheduled to appear in court on a certain date to consider the parents’ wish lists.  

3) When was it signed?  Next to the judge’s signature should be the date the order was signed.  If there is more than one order in a case, the more recent order typically supersedes the older order. For example, sometimes a court will enter temporary orders during a divorce and then issue a final order (or decree) once the divorce is finalized, or a court may modify a previous custody order if the circumstances have materially and substantially changed. Thus, make sure you are reviewing the most current court order. If you are not sure, ask the parents; one parent will usually speak up if the other parent is trying to pull a fast one and get the school to follow a superseded order.

4) Who has the right to make decisions for the child?  Typically, the most relevant sections of the order, as far as school employees are concerned, are the sections that address parents’ educational rights and the access and possession schedule of the child. But before we get there, a little background may be helpful. When parents refer to ‘custody,’ they are typically referring to conservatorship (who gets to make the decisions) and/or visitation, i.e., possession and access (who gets the child when). Often, both parents are joint managing conservators, meaning they share some decision-making for the child, but one parent may have the exclusive right to make certain decisions, including educational decisions. If the court determines it is not in the best interest of the child to designate both conservators as joint managing conservators, it may designate one conservator as the sole managing conservator with specific rights (including the exclusive right to make educational decisions) and the other a possessory conservator with limited rights (such as the right to receive educational records).

5) What rights does each conservator have?  After considering the designation of each conservator, it is still important to review which rights and duties each conservator has according to the order. Some of the relevant rights for school employees include:

For school employees, perhaps the most relevant right is who has the right to make educational decisions (e.g., enrolling or withdrawing the child, consenting to testing etc.). There are four general ways educational decisions are made:

  1. Exclusive: One conservator has the exclusive right to make educational decisions; that one’s easy, only the chosen one can make educational decisions.  
  2. Independent: Both conservators have the independent right to make educational decisions; either can decide, including undoing the decision the other conservator made the day before.  
  3. Subject to Consultation: Both conservators have “the right, subject to consultation with the other conservator” to make educational decisions. The parents do not have to agree on the decision, so again either parent can make decisions and undo what the other decided. Hopefully, the school does not get caught in a game of decision-making table tennis.
  4. Subject to Agreement: Both conservators have “the right, subject to agreement” to make educational decisions. This means they must reach an agreement prior to making any educational decision. This can be particularly frustrating for school staff because it could result in an impasse. If the conservators cannot reach an agreement, then no decision can be made on the child’s behalf and the conservators will probably have to go back to court. Why a judge thinks it is a good idea to require parents who were apparently not able to agree before the divorce to agree on every decision about their child’s education after the divorce is beyond logic. In many cases, it only results in future disagreement. You may tell the parents that the school does not wish to get in the middle of their family matter and to ask them to inform the school of their decision when they have one. Let them fight it out.  You don’t have to stand there and referee.

6) What if a parent does not abide by the order?  Another common scenario is when one parent shows up at school to sign a child out of school when it is not that parent’s time or day, i.e., that parent is not entitled to possession of the child at that time. Every divorce decree should have a possession schedule that indicates when each parent has possession of the child.  Possession may exchange between the parents at different times depending on the order. For example, one parent’s right to possession may begin at 6:00 p.m. on Friday and end at 6:00 p.m. on Sunday in which case the school’s involvement may be limited. On other hand, the exchange may be such that one parent drops the child off at school and another picks the child up at the time school is dismissed.  Until the parent’s time of possession actually begins, he/she does not technically have the right to take the child out of school unless the other parent agrees. The parent with the right to possession can allow the other parent (or any competent adult) to pick the child up from school, and hopefully parents will be reasonable if a parent wants to pick up the child a few minutes early for a doctor’s appointment. If a parent drives up to the school and tries to pick up a child when it is not his/her scheduled time, it is advisable to contact the other parent to confirm whether there was an agreement between the parents regarding pick-up. If there was not such an agreement, comply with the possession schedule in the order the school has on file. The parent may be upset, but you can say that the school is simply trying to comply with the court order.  After all, the school did not create the order; if a parent does not like it, he or she can try to get the order changed.  

Because there are myriad variations that may be included in these types of orders and they may include some non-standard provisions, if you have any questions about an order, please contact your school attorney.

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