Noncustodial Parents and Access To Records: Problems On Both Sides of the Pond

I felt a great sense of connection with our friends on the other side of the pond when I read the recent post in the British family law blog Bloody Relations (now isn't that a great name for a family law blog?!) about the problem many noncustodial parents over there sometimes have trying to get their children's school and medical records, as it is an all-too-familiar problem to me here in Massachusetts. The attitude of other agencies to non-resident parents, Post on Sunday, 11 November 2007:

"Other agencies such as doctors and teachers are not always familiar with the rights of a non-resident parent. They may know they have legal responsibilities to share information but may have practical constraints. Schools, for example, may have a duty to inform parents (whether or not with parental responsibility) but they tend to take the practical short cut. The child is given information in an envelope to take home to the main carer. This does not reach all the relevant people. Maybe you need to get in touch with the school directly and ask for arrangements to be made about copies of reports or the school calendar. GPs are under so much pressure. They do not want to produce anything in writing and do not usually do so when someone attends for an appointment. They have little or no access to legal advice and do not know what to do or what their legal responsibilities are. If in doubt, they will take the line of least resistance and will not necessarily put themselves out just because you share parental responsibility...." [ Note: "GP" (General Practioner) in the UK = "PCP" (Primary Care Physician) in the US; "non-resident parents" in the UK = "noncustodial parents" in Massachusetts]

It seems noncustodial parents have similar problems on both sides of the pond - well at least both in England and New England, I should say. Here in Massachusetts - just like, apparently, in the UK - many physicians and school officials often are confused about their responsibility to provide records to noncustodial parents ("non-resident parents" in the UK vernacular). Such information generally should be provided, so long as both of a child's parents share legal custody, as they most often do, regardless whether a parent seeking such information is the "custodial parent " (i.e., the one with physical custody) or the "noncustodial parent" (i.e., the one who usually shares legal custody but has visitation rights or "parenting time" rather than physical custody). Legal custody, which carries with it the authority to make important decisions about schooling, medical care, and other important issues not strictly tied to the day-to-day concerns of physical custody, is now generally shared between parents of divorce, and is quite often shared even between many parents of children born out of wedlock, even though physical custody is still most often granted to one parent alone.

However, many school officials and medical providers, accustomed to dealing more often with mothers than fathers, oftentimes assume that the separated and divorced mothers have custody and assume they have complete, sole authority over the children and their records; thus such officials are often reluctant or unwilling to give fathers records or information when these fathers seek such documents directly, and these officials are not certain whether they are required by law to do so. This confusion or reluctance most often happens, in my experience, to affect "noncustodial fathers" who have full legal custodial rights, but who are nonetheless denied access to such information due to the ignorance of the officials and/or due to the custodial mothers' attempts to prevent such information from being given to the fathers. I have on a few occasions encountered custodial fathers (those who have both legal and physical custody) who have experienced difficulty acquiring records that were required to be given to them. (I have not yet witnessed a case in which any mother, whether a custodial parent or not, has been denied access to information, but such a case is bound to have happened somewhere, and will likely happen more frequently, as more and more fathers gain sole or shared physical custody.)

Many separated or divorced parents fortunately do work with their counterparts and share information freely between themselves, thus manifesting the appropriate sense of cooperation that benefits their children. Also, many school systems make dual sets of information available to both parents, especially for joint physical custodial parents and for parents with a high level of conflict. But these duplicate arrangements are not automatic. It is usually easiest for teachers and administrators to give out the information to only one parent, the one who is most involved with the children, often the mother (it is certainly still the case that there are many more mothers, whether single, married, or divorced, who are the more active of a child's two parents, and who are the more directly involved with their children's schools, than there are fathers in such dominant parenting roles). However, the costs of such duplicative efforts are fast disappearing, as email and the internet are increasingly used for communication.

When my clients have trouble getting records, usually from school officials, I always point them to Massachusetts law and the Massachusetts Department of Education regulations promulgated pursuant to that law, which state that, generally absent a specific court order prohibiting the release of this information to a parent with legal custody but not physical custody (i.e., most of those whom we call "noncustodial parents") records should be given to such a parent. (See the exact wording of the education department regulation, below, which explains the procedure that is supposed to be followed by school administrators.) The ultimate burden is on the parent trying to prevent the other one from getting records to prove that the other is not entitled to such records. In practice, however, it often does not work out that way. A noncustodial parent is wise to be prepared to prove he/she shares legal custody, even if not physical custody, with the other parent, and also to show the law and regulations to the school principal and/or medical provider. The best family law practitioners in Massachusetts, furthermore, very wisely seek specific language in agreements and court judgments/orders that clearly spell out the precise rights of the noncustodial parent to such information, even at the risk of being superfluous and redundant.

The current applicable Massachusetts laws and regulations for school records in particular are as follows:

MASSACHUSETTS GENERAL LAWS, Chapter 71, Section 34 D (Student records; maintenance, storage, destruction, etc.; inspection by parent or guardian): "The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or any other records concerning such pupil which are kept or are required to be kept."

MASSACHUSETTS GENERAL LAWS, Chapter 71: Section 34E (Inspection of student records; persons authorized): "Each school committee shall, at the request of a parent or guardian of a student, allow such parent or guardian to inspect academic, scholastic, or any other records concerning such student that are kept or are required to be kept, regardless of the age of such student. Each school committee shall, at the request of a student eighteen years of age or older, allow such student complete access to all school records relative to him or her."

MASSACHUSETTS GENERAL LAWS, Chapter 71, Secton 34H (Noncustodial parents; receipt of information for child enrolled in public elementary or secondary schools; notice to custodial parent): "(a) Each public elementary and secondary school shall provide student records, including, but not limited to, the following information, in a timely and appropriate manner to the parents of a child enrolled in the school if the parents are eligible for information under this section and request the information in the manner set forth in this section: report cards and progress reports; the results of intelligence and achievement tests; notification of a referral for a special needs assessment; notification of enrollment in an English language learners program established under chapter 71A; notification of absences; notification of illnesses; notification of any detentions, suspensions or expulsion; and notification of permanent withdrawal from school. Each school shall also make reasonable efforts to ensure that other written information that is provided to the custodial parent but not specified in the preceding sentence be provided to the requesting parent if that parent is eligible for information under this section. All electronic and postal address and telephone number information relating to either the work or home locations of the custodial parent shall be removed from information provided under this section. Receipt of this information shall not mandate participation in any proceeding to which notification pertains, nor shall it authorize participation in proceedings and decisions regarding the child’s welfare which are not granted through the award of custody. For purposes of this section, any parent who does not have physical custody of a child shall be eligible for the receipt of information unless: (1) the parent’s access to the child is currently prohibited by a temporary or permanent protective order, except where the protective order, or any subsequent order which modifies the protective order, specifically allows access to the information described in this section; or (2) the parent is denied visitation or, based on a threat to the safety of the child, is currently denied legal custody of the child or is currently ordered to supervised visitation, and the threat is specifically noted in the order pertaining to custody or supervised visitation. All such documents limiting or restricting parental access to a student’s records or information which have been provided to the school or school district shall be placed in the student’s record.
(b) A parent requesting information under this section shall submit a written request to the school principal.
(c) Upon receipt of a request for information under this section, the school shall review the student record for any documents limiting or restricting parental access to a student’s records or information which have been provided to the school or school district and shall immediately notify the custodial parent of the receipt of the request. Notification must be made by certified mail and by first class mail in both the primary language of the custodial parent and in English. The notification shall also inform the custodial parent that information requested under this section shall be provided to the requesting parent after 21 days unless the custodial parent provides to the principal of the school documentation of any court order which prohibits contact with the child, or prohibits the distribution of the information referred to in this section or which is a temporary or permanent order issued to provide protection to the child in the custodial parent’s custody from abuse by the requesting parent unless the protective order or any subsequent order which modifies the protective order, specifically allows access to the information described in this section.
[There is no subsection (d).]
(e) At any time the principal of a school is presented with an order of a probate and family court judge which prohibits the distribution of information pursuant to this section the school shall immediately cease to provide said information and shall notify the requesting parent that the distribution of information shall cease.
(f) The principal of each public elementary and secondary school shall designate a staff member whose duties shall include the proper implementation of this section.
[There is no subsection (g).]
(h) The department of education shall promulgate regulations to implement the provisions of this section. Said regulations shall include provisions which assure that the information referred to in this section is properly marked to indicate that said information may not be used to support admission of the child to another school."

MASSACHUSETTS DEPARTMENT OF EDUCATION REGULATION: 603 CMR 23.07(5): "Access Procedures for Non-Custodial Parents. As required by M.G.L. c. 71, § 34H, a non-custodial parent may have access to the student record in accordance with the following provisions.
(a) A non-custodial parent is eligible to obtain access to the student record unless:
the parent has been denied legal custody or has been ordered to supervised visitation, based on a threat to the safety of the student and the threat is specifically noted in the order pertaining to custody or supervised visitation, or
the parent has been denied visitation, or
the parent's access to the student has been restricted by a temporary or permanent protective order, unless the protective order (or any subsequent order modifying the protective order) specifically allows access to the information contained in the student record, or
there is an order of a probate and family court judge which prohibits the distribution of student records to the parent.
(b) The school shall place in the student's record documents indicating that a non-custodial parent's access to the student's record is limited or restricted pursuant to 603 CMR 23.07(5)(a). (c) In order to obtain access, the non-custodial parent must submit a written request for the student record to the school principal.
(d) Upon receipt of the request the school must immediately notify the custodial parent by certified and first class mail, in English and the primary language of the custodial parent, that it will provide the non-custodial parent with access after 21 days, unless the custodial parent provides the principal with documentation that the non-custodial parent is not eligible to obtain access as set forth in 603 CMR 23.07 (5)(a).
(e) The school must delete all electronic and postal address and telephone number information relating to either work or home locations of the custodial parent from student records provided to non-custodial parents. In addition, such records must be marked to indicate that they shall not be used to enroll the student in another school.
(f) Upon receipt of a court order that prohibits the distribution of information pursuant to G.L. c. 71, §34H, the school shall notify the non-custodial parent that it shall cease to provide access to the student record to the non-custodial parent."