Non-Custodial Parents: Legal Issues

I.  Definitions

What is custody?  What is guardianship?  What legal relationship does a stepparent have to a child who lives in the home?  What is joint custody?  All of these questions are asked on a regular basis by education professionals.  The context varies:  sometimes a residency question is involved.  At other times, educators are attempting to unsnarl a complicated thicket of relationships just to figure out who has the authority to sign a form to release information or initiate services.  The purpose of this memorandum is to inform the reader with respect to the latter quandary, using relevant statutory definitions as well as providing a tool with which to analyze whether an individual asserting that he or she has authority does, in fact, have that authority.

The Illinois Probate Act defines “Guardian” as a legal representative of a minor.[1]  A “representative” is defined in the same act as a standby guardian, temporary guardian, and a guardian.[2]  These terms are defined by the Probate Act,[3] as well as a new addition known as “short-term guardian,”[4] which is:

§1-2.24.     a guardian of the person of a minor as appointed by a parent of a minor under Section 11-5.4, or a guardian of the person of a disabled person as appointed by the guardian of the disabled person under Section 11a-3.2.

The Juvenile Court Act contains perhaps the best and most comprehensive definitions:

(7)  “Emancipated minor” means any minor 16 years of age or over who has been completely or partially emancipated under the “Emancipation of Mature Minors Act”,

(8)  “Guardianship of the person” of a minor means duty and authority to act in the best interests of the minor, subject to residual parental rights and responsibilities, to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned with his or her general welfare.  It includes but is not necessarily limited to:

(a)  the authority to consent to marriage, to enlistment in the armed forces of the United States, or to major medical, psychiatric, and surgical treatment; to represent the minor in legal actions; and to make other decisions of substantial legal significance concerning the minor;

(b)  the authority and duty of reasonable visitation, except to the extent that these have been limited in the best interests of the minor by court order;

(c)  the rights and responsibilities of legal custody except where legal custody has been vested in another person or agency; and

(d)  the power to consent to the adoption of the minor, but only if expressly conferred on the guardian in accordance with Section 2-29, 3-30, or 4-27.

(9)  “Legal custody” means the relationship created by an order of court in the best interests of the minor which imposes on the custodian the responsibility of physical possession of a minor and the duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the person, if any.

(10) “Minor” means a person under the age of 21 years subject to this Act.

(11)  “Parent” means the father or mother of a child and includes any adoptive parent.
. . .

(13)  “Residual parental rights and responsibilities” means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including, but not necessarily limited to, the right to reasonable visitation (which may be limited by the court in the best interests of the minor as provided in subsection (8)(b) of this Section), the right to consent to adoption, the right to determine the minor’s religious affiliation, and the responsibility for his support.[5]  (All emphasis is added)

It also tends to be confusing to most people when conflicting statutory definitions are encountered.  For example, the term “minor” is defined above in the Juvenile Court Act as anyone under 21, yet the Child Care Act defines “child” as follows:

§ 2.01.     Child.  “Child” means any person under 18 years of age.  For purposes of admission to and residence in child care institutions, group homes, and maternity centers, the term also means any person under 21 years of age who is referred by a parent or guardian, including an agency having legal responsibility for the person pursuant to the Juvenile Court Act or the Juvenile Court Act of 1987.  Termination of care for such persons under 21 years of age shall occur no later than 90 days following completion of a public school secondary education program or the individual’s eligibility for such a program.[6]

To add to the confusion, the Parental Responsibility Act defines “minor” as a person between the ages of 11 and 19![7]  The same act also defines a “Legal Guardian” as follows:

(1)  “Legal guardian” means a person appointed guardian, or given custody, of a minor by a circuit court of the State, but does not include a person appointed guardian, or given custody, of a minor under the “Juvenile Court Act or the Juvenile Court Act of 1987”.[8]  (Emphasis added)

The School Code, however, defines “parent” as “a parent or legal guardian of an enrolled student of an attendance center [for cities over 500,000].”[9]  However, for homeless children the School Code defines “parent” as “the parent or guardian having legal or physical custody of a child.” (emphasis added)[10]

It is clear that in most circumstances for school purposes, there must be a court order or an actual, legal, or documented connection between the “parent” and the “child.”  A stepparent, for example, who shows up at a staffing and asserts that he or she has authority over the child must be questioned.  Unless there has been an adoption, court-ordered guardianship, or other document that gives the stepparent legal authority, there is no authority.  Likewise, in the case a non-custodial parent who appears at a staffing or in the administrator’s office and asserts authority over the child.  At the very least, a non-custodial parent should sign a document certifying that he or she has the authority so claimed.

II.  Introduction to the Problem

The issue of what rights a so-called “non-custodial” parent has is cropping up with increasing frequency.  For example, in the case of Navin vs. Park Ridge School District #64,[11]the non-custodial parent, who under the divorce decree only had a right to information and not concerning any educational decision making, requested a due process hearing demanding more services.  The hearing officer dismissed the request on the basis that the father, as the requesting party, was the non-custodial parent and had no right to request a due process hearing.  The District (trial) Court agreed and affirmed the decision of the hearing officer, but the Federal Appellate Court disagreed and remanded the case to the District Court for further proceedings.  In this somewhat aberrant opinion, U.S. District Judge Conlon outlines the facts of the case, including the Appellate Court’s order (to her) to readjudicate the case.  She then concluded that she couldn’t do anything until a hearing officer had actually made a determination of the non-custodial parent’s claims of certain procedural violations.  Therefore, the District Court judge who had the case remanded to her again remanded the case down to the hearing officer.  The hearing officer was compelled to actually hold a hearing to examine the non-custodial father’s complaints and from which, if he is aggrieved, he would then have a right to again appeal to the District Court, and ultimately to the Appellate Court.

Just from precedent set by this one case, then, Illinois hearing officers must consider procedural claims made by non-custodial parents even though the decree does not give them any right to determine educational programming.  Our opinion is that this decision creates meaningless work in a very narrow area of non-custodial parent rights, however, now that the opinion exists, it must be followed.

III.  Questions to Ask in the Majority of Cases

A.  Source of Authority

If you are presented with potential custodial issues, you first need to inquire as to the source of the authority claimed.  Usually in domestic relations matters, there is a “decree” which includes a settlement agreement or court order that outlines the duties and responsibilities of the parties.  This is always on file in a court clerk’s office somewhere.  If you are ever in any significant doubt with regard to the validity of the authority claimed by a parent, you always have the option of referring to the court file, which is open to public examination.  The general rule of thumb here should be, “when in doubt, check the file.”  However, it is recognized that educators (a) don’t have the responsibility to check every court file to verify the truthfulness of parents and yet (b) should have some documented basis for taking what the parent says at face value and moving forward.  In this regard, we suggest the attached document entitled “Certification of Authority.”  Once this document is signed by a so-called non-custodial parent, as indicated in the document, a copy should be forwarded to the custodial parent.  A cover letter should accompany the form, indicating to the custodial parent that if the school authorities don’t hear from him or her within a week, the form will be accepted as truthful.

B.  Type of Right Asserted

Non-custodial parent rights are divided into two areas: consent for services (in domestic relations, these are usually medical and educational) and consent for release of information.  Generally speaking, pursuant to Illinois decisional case law in the mental health area, the non-custodial parent of a child under 12 has the right to the same flow of information as the custodial parent if he or she requests such in writing.[12]  However, for school records, which are governed by the Family Educational Rights and Privacy Act (FERPA)[13], there is no such restriction on the child’s age.  Therefore, unless the decree states otherwise, the non-custodial parent does not have the authority to consent to the initiation or administration of medical or educational services.  This is, of course, another case for checking the decree which, in addition, can usually be provided by the parent who seeks information or consent authority.

1.  Confidential Information:

a.  School Information:

In connection with educational information as defined in the Illinois School Student Records Act, all you need is the consent of one parent, and generally speaking that should be the parent who has custodial authority over the child.  For school information only, you do not need the signature of the child at any time.

b.  Mental Health Information:

This is governed by the Mental Health and Developmental Disabilities Confidentiality Act[14].  Different rules apply to the release of mental health information and these are very specific.  The attached form contains a second section, in the same document, for the release of mental health information only.  It should be noted that where there is a need to block disclosure of information to any parent, whether custodial or non-custodial, and the information is “mental health” in nature, the refusal of any child age 12 to 18 to sign the form is enough to block the information in the absence of a court order for disclosure.  For children below the age of 12, however, both non-custodial and custodial parents have the same right to the flow of confidential mental health information.

2. Services:

The issue of consent for services is more complicated.  The decisional case law generally requires that the custodial parent authorize services.  Cases have shown that when the non-custodial parent attempts to initiate services, the courts have invalidated the authorization.  Thus, educators should take some steps to verify the authority of the custodial parent who seeks to authorize initiation, change, or cessation of services.  Quite possibly, the attached Certification of Authority would be sufficient if there is any doubt.  However, in cases with serious potential consequences, there is no equal to actually checking the court file.  Your school attorney can help with this process.

C.  Incarcerated Parents

When the parent or guardian has been incarcerated, other issues may need to be considered.  Depending on the offense, it is possible that the rights of the parent may have been terminated.  If such is the case, then there might be a private guardian appointed or, alternatively, the child may be a ward of the state.  If the child is a ward of the state, the state guardian (DCFS usually, in Illinois) controls decision-making.  If there is a private guardian, you can usually ask for the “letters of office” which should contain all of the guardian’s duties, authority, and responsibilities.

It is also possible that an incarcerated parent may have retained parental rights, in which case it would be necessary to correspond with the parent, even though incarcerated, for the purpose of obtaining consents.  Likewise, an incarcerated parent continues have the legal authority to consent to information disclosure unless parental rights have been fully terminated.

[1]755 ILCS 5/1-2.08.

[2] 755 ILCS 5/1-2.15.

[3] 755 ILCS 5/1-2-23, et al.

[4] 755 ILCS 5/1-2.24.

[5] 705 ILCS 405/1-3

[6] 225 ILCS 10/2.01.

[7] 740 ILCS 115/2(2)

[8]   740 ILCS 115/2(1)

[9]   105 ILCS 5/34-1.1

[10]  105 ILCS 45/1-5

[11] 36 IDELR 235

[12]Dymek v. Nyquist, 128 Ill.App.3d 859, 469 N.E.2d 659

[13] FERPA, 20 U.S.C. § 1232g; 34 CFR Par 99

[14] While mental health files also are now subject to the Health Information Portability and Accountability Act (“HIPAA”), any mental health records related to students which are maintained in the student’s  permanent or temporary school records fall under the Family Educational Rights and Privacy Act (“FERPA”) regulations, and are generally exempted from HIPAA regulations.