Transcript 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
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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
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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
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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?
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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?
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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?
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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?
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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.