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Student Records: Non-Custodial Parent

Introduction

Under federal and state law, a divorced or separated parent has full access to his/ her child’s student records unless there is a court order, state statute, or legally binding document relating to matters such as divorce, separation or custody that specifically revokes this right. The Massachusetts legislature recently passed a statute (Mass. Gen. L. ch. 71, §34H) that is designed to standardize the process by which public schools provide copies of student records to parents who do not have physical custody of their children ("non- custodial parents"). Non-custodial parents who want copies of their children’s student records must submit a written request to the school principal annually. The principal must designate a staff member as being responsible for properly complying with the statute’s requirements.

The Massachusetts Department of Education issued an advisory memorandum on this matter on September 1, 1999. The Commissioner’s memorandum also has a useful check list, a sample affidavit and notification letter to the custodial parent. It can be found on the internet at

www.doe.mass.edu/mailings/090199/sturecordememo.html

Definition of Eligible Non- Custodial Parent

A parent who does not have physical custody of his/ her child is eligible to receive written information about the child unless:

• the parent has been denied legal custody of the child based on a threat of safety of the child or custodial parent;
• the parent has been denied visitation or has been ordered to supervised visitation; or
• the parent’s access to the child or the custodial parent has been restricted by a temporary or permanent protective order unless the protective order (or a subsequent order modifying the protective order) specifically allows access to the information described below.

A parent can have sole or shared physical custody of his/ her child. A parent has sole physical custody if the child resides with and is under the supervision of that parent, subject to reasonable visitation by the other parent unless the court determines that this would not be in the best interest of the child. Parents have shared physical custody when their child has periods of residing with and under the supervision of each parent. If a child’s parents live apart but have any kind of "shared physical custody," both parents are presumed to have full access to the child’s student records and this new statute does not apply. Presumably, the court order will use the phrase "shared physical custody" so that it is easily discernible whether the parent simply has reasonable visitation rights rather than "shared physical custody."

A parent can also have sole or shared legal custody of his/ her child. Legal custody refers to the right and responsibility to make major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.

Available Information

Eligible non-custodial parents who have requested copies of their child’s student record information in the manner set forth below are entitled to receive.

• report cards and progress reports
• results of intelligence and achievement tests
• notification of
  
  • referral for a special needs assessment
  • enrollment in a transitional bilingual program
  • absences
  • illnesses
  • detentions, suspensions or expulsion
  • permanent withdrawal from school

Schools are also required to make "reasonable efforts " to ensure that other written information that is provided to the custodial parent, but not specified above, is provided to the eligible non-custodial parent who has requested the information in the manner set forth below.

Please note that all address and telephone number information must be removed from any information provided. Also, all records provided must indicate on them that the records cannot be used to support the admission of the child to another school.

Documents that Must Accompany Initial Request for Information

The initial request must include:

• a certified copy of the probate court’s order or judgment relative to the custody of the child indicating that;
  
  the requesting parent has not sought and been denied shared legal custody based on a threat to the safety of the child or the custodial parent and is entitled to unsupervised visitation with his/ her child:

or

• a certified copy of a probate and family court judge’s order specifically ordering that the information set forth above be made available to the requesting parent and certifying that:
  
  1. the order was made after a review of the records, if any, of the judgment of custody or the criminal history of the requesting parent.
  2. provision of the requested information has been determined not to pose a safety risk for the custodial parent or to any child in the custodial parent ’s custody; and
  3. it is in the best interest of the child that the information be provided to the requesting parent

AND

• an affidavit from the requesting parent certifying that the judgment or order remains in effect and that there is currently no temporary or permanent protective order in effect that restricts his/her access to the custodial parent or to any child in the parent’s custody.

Mandated Notification to the Custodial Parent

The school must immediately notify the custodial parent upon receipt of the request for information. Notification must be sent by registered mail and first class mail in English and the primary language of the custodial parent. The school may seek reimbursement for the cost of the postage from the requesting parent.

The notification must inform the custodial parent that the information requested must be provided to the requesting parent after 21 days un- less the custodial parent provides the principal with:

• a court order which (1) prohibits contact with the child or (2) prohibits the distribution of the information set forth above; OR
• a temporary or permanent order issued to provide protection to the custodial parent or any child in the custodial parent’s custody from abuse by the requesting parent unless the protective order (or a subsequent order modifying the protective order) specifically allows access to the information set forth above.

Requests for Records in Subsequent School Years

Each year after the initial request, the eligible non-custodial parent must submit a letter to the principal indicating that s/he continues to be entitled to unsupervised visitation with his/ her child and to be eligible for receipt of information set forth above. Upon receipt of the request, the school must comply with the notification procedure set forth above.

Court Order Prohibiting Distribution of Information

If, at any time, a school principal receives an order from a probate and family court judge which prohibits the distribution of the information set forth above, the school must immediately cease providing this information and must notify the requesting parent that the distribution of information must cease.