Custody and Access FAQs
- In custody and access situations which parent can make educational decisions for a student?
- Who has access to information about the student?
- Does a parent with access have the right to exercise access at the school?
- How can the school tell who has custody and access?
- What if the student doesn’t want us to share the information with one or both parents?
- Do we have to create reports or provide opinions or verbal information to parents involved in custody disputes?
- What do we do if a lawyer for one parents asks for copies of documents?
- What if the lawyer wants an employee to sign an affidavit?
- What if an employee is served with a subpoena?
The information provided should not be regarded as legal advice. If you have questions about a specific fact situation please contact legal counsel.
1. In custody and access situations which parent can make educational decisions for a student?
- If both parents live together: Both parents have legal custody and instructions can be taken from either or both parents.
- If the parents are separated and there is no court order or agreement concerning custody: Both parents continue to have legal custody of the children.
- If there is a custody order or agreement in place:
- If one parent has sole custody: The custodial parent has the right to make educational decisions.
- If both parents have joint custody: Both parents can make decisions so clarify with the parents as early as possible how the arrangement will be working.
2. Who has access to information about the student?
- If the parent has sole or joint custody: The custodial parent/guardian has access to information about the child.
- If the non-custodial parent has access: Subsections 9(2) and (3) of The Children’s Law Act provides:“9(2) Unless otherwise ordered by the court, a parent who is granted access to a child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child.(3) The right of a parent who is granted access described in subsection (2) is not, unless the court orders otherwise, a right to be consulted about or to participate in the making of decisions by the custodial parent.”
- If the non-custodial parent does not have access: A non-custodial parent who does not have access is not entitled to receive any information about the child.
3. Does a non-custodial parent/guardian have the right to exercise access at the school?
- Non-custodial parents, even if they have access, should not be allowed to visit with the child at school or take part in school trips without authorization from the custodial parent. In theses situations, the school must leave to the parents to work out. Remember: School administrators have the right to refuse entry to school property to any person who might disturb the educational environment. This includes parents who have access to the children.
4. How can the school tell who has custody and access?
- Assume that both parents have joint custody until the school is provided with a copy of either a court order or a written agreement between the parties which sets out who has custody and access. A copy of the order or agreement should be kept by the school and parents should be advised to let the school know as soon as possible if the order or agreement is amended.
5. What if the student does not want us to share the information with one or both parents?
- The personal information of a child under 18 years can be released to parents as long as it does not interfere with the privacy rights of the child. Privacy rights are most likely to be affected in cases where highly confidential information such as counselling notes is requested.
6. Do we have to create reports or provide opinions or verbal information to parents involved in custody disputes?
- The school does not have to create new reports for parents or provide written answers to questions asked by parents just because they may be involved in a possible court action. The school will need to provide parents in custody situations with the same type of information as it would normally provide to all parents. In these situations, this will primarily be factual reporting but can also include professional opinions.
7. What do we do if a lawyer for one parents asks for copies of a document?
- Ask the lawyer to provide the request in writing with written permission from the parent. As long as the parent has custody or access they can have access to the information provided if it does not interfere with the privacy rights of the child, unless a court has ordered otherwise.
8. What if the lawyer wants an employee to sign an affidavit?
- Caution must be exercised. In most cases it is not desirable for employees to provide evidence of this nature to one side or other in a dispute, however, there may be exceptions. It is advisable to contact legal counsel to review the request.
9. What if an employee is served with a subpoena?
- There are two types of subpoenas:
- a subpoena ad testificandum requires someone to appear and give verbal testimony.
- a subpoena duces tecum is a command for a witness to appear and bring to court all documents the witness has in his or her possession that might relate to the case.
When served with a subpoena an individual must attend at the time specified unless excused either by the third party serving the subpoena or by the court.
If the subpoena calls for documents it must be determined whether or not the subpoenaed employee has appropriate access to the record for court purposes. For example, school records are not “in the possession” of teachers as records belong to, and are in possession, of the board of education (board). Board policy or the director of education will determine who is the appropriate person to represent the board if the records are required.