Notice: This is part one of a two-part series on how school officials can address the child custody issues they could encounter on campus. Part 1 covers custody basics, and part 2 covers how these issues apply in cases where child abuse and/or domestic violence are suspected. This article contains educational information, not legal advice. Check with an attorney for case-specific policies and procedures and state laws.
In Cleveland, Tenn., a man without physical custody of either his 6 year old son or his estranged wife’s 8 year old daughter signed both children out of school and left with them. A divorce was pending, and the custodial mother had previously told the school not to let the man leave with either child. School policy required a written reason for removing students and approval of the reason by the principal. The man wrote “keeping promise to mother” as the reason for taking his estranged wife’s daughter and “payback” as the reason for taking his son. The principal did not see or approve these reasons. The man went to his home, stabbed the children to death, poured gasoline on their bodies and set the house on fire. When police arrived, the man refused to put down the knife, charged a police officer and was killed.
Related Article: The Impact of Child Custody Issues on School Safety (Part 2)
School officials almost need a law degree to protect students. Sorting out the rights of single parent families, blended and non-traditional families and divorcing, separated and never married families is very difficult. Laws and regulations vary from state to state, but a few basic rules are useful in most situations. This terrible tragedy might well have been averted by following state law and a properly established school policy.
Campus officials making decisions involving their students will hear conflicting stories from various parties and the two parents. They will be privy to sensitive personal information from emotionally charged people. Circumstances will require an immediate decision and response.
Determining Who Is the Father Can Be Challenging
Many state laws define a parent as the father or mother of a child and a custodial parent as the parent who has been awarded physical custody of a child by a court. The non-custodial parent is typically defined as the parent who has not been awarded physical custody of a child by a court.
It is relatively easy to determine who is a child’s mother. A child’s birth certificate and a mother’s driver’s license and birth certificate along with legal documents proving any name changes of the mother, such as a divorce decree or marriage license, should suffice. Simply checking these documents will usually prevent women from wrongfully holding themselves out as a mother of a child and wrongfully taking a student.
In many situations a mother with sole physical and legal custody of a child will not have any written documentation or court order to prove her right to custody. The mother’s custody rights are often automatic.
In most situations, however, a father with sole or shared physical and legal custody of a child will have written documentation or a court order to prove he is the father and has custody rights to a child.
People use the term “father” with ease and abandon. It is up to school staff to ask questions to determine if a man called “father” is an alleged, putative or biological father with no legal rights and responsibilities to a child, or a legal father with custody or parenting time rights.
Related Article: How Schools Should Protect Students from Child Custody Disputes
A putative father is a male who is alleged to be or claims he may be a child’s father but who is not presumed to be the child’s father by law, has not established paternity of the child in a court proceeding and has not established paternity of the child by executing a paternity affidavit before the filing of an adoption petition.
A currently married man and woman have no written documentation or court order to prove their rights to care, custody and control of children born during their marriage. Neither a father nor a mother in an intact marriage has written documentation or court order setting out custody and parenting time for their children born during their marriage.
When the marriage ends in divorce, there will be written documentation or court orders spelling out the rights and responsibilities of the former husband and former wife to children born during their marriage.
Parents Must Provide Written Documents, Court Orders
School staff must urge parents to provide current and complete written documentation and court orders to the school. School districts must have a fairly foolproof method for filing and reviewing the paperwork. For example, if a man comes to a school and claims he is the father of a child and wishes to leave school with the child, the school must be able to quickly determine if the man is indeed the legal father with rights to the child, who has physical custody of the child, and if the physical custodian has authorized the man to leave the school with the child.
When school records contain information about grandparents, it is necessary to determine if a grandparent is the paternal grandparent (the father’s parents) or the maternal grandparent (the mother’s parents), or a step-grandparent who has married a grandparent.
Men and women who have children out of wedlock may not have written documentation or court orders defining their rights and responsibilities concerning a child. The mother’s legal and physical custody rights are often automatic. The man must take action to prove and formalize his status as father, at which time he will have written documentation or a court order to prove he is the legal father and to define his custody or parenting time rights.
In many jurisdictions the term used for visitation is now “parenting time” in an effort to more accurately describe the time a non-custodial parent spends with a child. Generally the parent who has physical custody may not prevent the other parent from spending time with a child. Many states have adopted lengthy parenting time guidelines, defining the relationship among parents and their children so courts need not litigate the details in each case.
The actions men must take to become legal fathers depend on state law but usually include signing a paternity affidavit at the time of the child’s birth, establishing paternity in court, and/or being married to the mother at the time of the birth of the child and remaining married or obtaining a divorce. If parties are not sure of the status of the man, DNA testing may be done to ensure the man is the biological father of the child.
Know the Difference Between Legal and Physical Custody
If a parent says he or she has custody, school officials must ask for more information. There are two basic types of custody, legal custody and physical custody.
- A parent with legal custody has authority and responsibility for decision making regarding a child’s medical care, education and religion. With joint legal custody, the parents share in the decision making and turn to the court if they cannot agree.
- A parent with physical custody has the physical care, possession, supervision and control of a child. Physical custody does not give the custodian the right to keep the child away from the other parent. Often the other parent will have parenting time.
There are two basic types of physical custody, sole or primary custody and split or shared custody. A mother or a father may exercise sole or primary custody. A mother and a father may exercise shared or split physical custody. The details of the arrangements for shared or split custody should be specifically spelled out in the documentation or court order.
Many people call shared or split custody “joint physical custody.” This is easily confused with joint legal custody, which concerns decision making only and not physical custody. Parents will say they have “joint custody,” which is a meaningless phrase from a legal standpoint. This is why school officials should ask questions and ask for written documentation or court orders.
Parents with shared or split physical custody do complicate things for the school. For example, If Billy lives with his mother from Sunday at 6p.m. until Thursday at 6p.m. and with his father from Thursday at 6p.m. until Sunday at 6p.m., the father may not send a note to school and authorize a third party to pick up Billy from school on Tuesday, because the mother has physical custody on Tuesday. The father may send the note to school to authorize a third party to pick up Billy on Friday, because the father has physical custody on Friday.
Part 2 covers how these issues apply in cases where child abuse and/or domestic violence are suspected.
Gerald Eugene Summers is a Crisis Intervention Team member, School Safety/Healthy Children Instructor, and an Advanced School Specialist in Indiana. He is President and CEO of Integrity Security Protection LLC, a safety and security consulting and training firm in Evansville Indiana.
Sue Ann Hartig was Executive Director of the Legal Aid Society of Evansville Inc. for over 26 years, the first female judicial officer in Vanderburgh County, and City Attorney for the City of Evansville. Hartig is Vice President and CFO of Integrity Security Protection, LLC, a safety and security consulting and training firm in Evansville, Indiana.
Notice: This article contains educational information, not legal advice. Check with an attorney for case-specific policies and procedures and state laws. The views expressed by guest bloggers and contributors are those of the authors and do not necessarily represent the views of, and should not be attributed to, Campus Safety. This article was originally published in 2014, but the recommendations still apply.
