Family Law


 

A crash course in family law for school personnel

 

By Sally Holt Emerson and Christopher K Wrampelmeier

 

Underwood, Wilson, Berry, Stein & Johnson, P.C.

Amarillo, Texas

 

 

SCHOOL LAW SECTION OF THE STATE BAR OF TEXAS

 

I. INTRODUCTION

As the relationships of children with their parents and with others are increasingly affected by court orders, school administrators and teachers need to understand the impact of these orders on their responsibilities. Family law practitioners often see schools caught in the middle of controversies without having any forewarning or knowledge that there are potential problems. This article will lay out a brief sketch of parental rights and duties, and it will discuss how schools can be proactive in keeping disruptions to the child at a minimum.

 

II. RIGHTS AND DUTIES OF PARENTS

The Texas Family Code specifies the rights and duties every parent has, subject to a court order affecting those rights and duties. Among those rights and duties of a parent are the following that affect schools:

  • the duty of care, control, protection, and reasonable discipline of the child;

  • the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;

  • the right to consent to the child's medical and dental care and psychiatric, psychological, and surgical treatment;

  • the right to make decisions concerning the child's education; and

  • any other right or duty existing between a parent and child by virtue of law.1

                        (See end note #1.)

 

Besides being affected by a court order, these rights and duties may also be affected by an affidavit by a parent designating another person or agency to act as managing conservator of the child.  (See end note #2.)  Curiously, the Texas Family Code does not state how such an affidavit affects these rights and duties.

 

It is important to note that these rights belong to a parent and not to a stepparent or other relative of the child in the absence of a court order or an affidavit from the parent designating the stepparent or other relative of the child to act as managing conservator.

A "child" is defined as a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.(See end note #3.)

 

Once a student under 18 years of age marries, the parents' rights and duties are extinguished. The Texas Family Code permits a child who is 17 years of age (or at least 16 years of age with some conditions) to ask a court to remove his or her disabilities of minority. (See end note #4.)   The removal of those disabilities for general purposes gives the child the capacity of an adult, subject to specific constitutional and statutory age requirements.  (See end note #5.)

 

III. DIVISION OF PARENTAL RIGHTS BY COURT ORDER

The rights and duties of the parents of a child are altered as a result of a divorce, a paternity suit, or similar court order affecting the parent-child relationship. Typically, the court appoints both parents as conservators of the child. A parent can be appointed as sole managing conservator, possessory conservator, or joint conservator.

 

A. Rights of a Parent Conservator at All Times

In most cases, each parent conservator will have certain rights and duties at all times. Of these rights and duties, the ones most relevant to schools are the following:

  • the right to receive information from the other parent concerning the health, education, and welfare of the child;

  • the duty to inform the other parent in a timely manner of significant information concerning the health, education, and welfare of the child;

  • the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;

  • the right of access to medical, dental, psychological, and educational records of the child;

  • the right to consult with school officials concerning the child's welfare and educational status, including school activities;

  • the right to attend school activities;

  • the right to be designated on the child's records as a person to be notified in case of an emergency; and

  • the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.

          (See end note #6.)

 

Note that while each parent conservator has a duty to keep the other informed about the child's health, education, and welfare, the Texas Family Code recognizes that parents may not be good about carrying out that duty. Each parent conservator with these typical rights therefore has the right to confer with the child's school to get information firsthand from the school. One frequent source of frustration for non-custodial parents is not receiving information from the schools because that information is sent home with the child and the primary conservator of the child does not share that information. One way for schools to increase the involvement of both parents and to help ease conflict between them (which inevitably hurts the child) is to mail a duplicate copy of all information to non-custodial parents. Of course, the teacher will need to examine the records of each child to lean which has parents that are separated or divorced and to ensure that the non-custodial parent is entitled to the information.

 

B. Rights and Duties of a Parent During a Period of Possession of Child

In most cases, each parent conservator will have additional rights and duties while that parent has possession of the child, i.e., when the child is with that parent. These rights include:

  • the duty of care, control, protection, and reasonable discipline of the child;

  • the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

  • the right to consent for the child to medical and dental care not involving an invasive procedure; and

  • the right to consent for the child to medical, dental, and surgical treatment during an emergency involving immediate danger to the health and safety of the child.

          (See end note #7.)

 

C. Possessory Conservatorship

A parent possessory conservator usually only has those rights that a parent has at all times and those rights of a conservator during his or her periods of possession of the child. Although these rights are outlined above in this section, this paper has not listed all of them, only those that would be relevant to a school. That same criterion is used throughout this paper.

 

D. Sole Managing Conservatorship

The court must appoint one person to be the sole managing conservator or two or more people to be joint managing conservators of the child. A sole managing conservator has several more exclusive rights, i.e., the possessory conservator or possessory conservators of the child do not have these rights. Three of these rights particularly affect the school's relationship with the parents and the child:

  • the right to establish the primary residence of the child;

  • the right to consent to medical, dental, and surgical treatment involving invasive procedures and to consent to psychiatric and psychological treatment of the child; and

  • the right to make decisions concerning the child's education.

          (See end note #8.)

 

While a sole managing conservator has a lot of power, the possessory conservator still may be involved in the decisions affecting the child. A sole managing conservator has the exclusive right to change the child's residence. He or she is the only parent permitted to consent to invasive, non-emergency surgery or to psychiatric and psychological care. Most importantly, he or she is the only parent allowed to make decisions concerning the child's education. Note, however, that a possessory conservator has the right to know about these residential, medical, and educational decisions and about the factors requiring these decisions to be made. The sole managing conservator is supposed to be keeping the Possessory conservator informed about all of these matters. With particular regard to educational decisions, the possessory conservator may consult with school officials about what decision is best for the child and about the decisions made by the sole managing conservator. In the end, however, only the sole managing conservator gets to make educational decisions.

 

E. Joint Managing Conservatorship

In a joint managing conservatorship, the joint managing conservators share the rights of a sole managing conservator. The court does not have to -- and in fact very rarely does--divide these rights evenly between the two joint managing conservators. It is imperative that school officials consult the relevant court orders affecting each child to determine what rights each joint managing conservator has. The court may give one joint managing conservator one or more rights of a sole managing conservator to the exclusion of the other. For example, as of September 1, 1999 all court orders must designate only one joint managing conservator as having the right to determine the primary physical residence of the child.

 

The court may alternatively give both joint managing conservators the same right, such as the right to make decisions concerning the child's education. If it does so, it must either state that a joint managing conservator may exercise that right subject to the other's approval or the joint managing conservator may exercise that right independently of the other. Whichever of these two routes the court takes, if the joint managing conservators do not cooperate, trouble will arise. By making the exercise of a right subject to the other's consent, the court gives each joint managing conservator a veto over any proposed decision by the other. By allowing each joint managing conservator to make the decision independently of the other, the court creates a situation in which third parties and the child may be caught in middle.

 

Take the example of a child wanting to play football for which parental permission is needed. If the child's parents are joint managing conservators who share the right to make decisions concerning the child's education subject to the other joint managing conservator's approval, one could give approval and the other could either refuse permission or do nothing. If permission is refused, then the school should not permit the child to play football. If the other parent simply refuses to respond, the school should either not permit the child to play football or should try to contact the other parent by telephone or in person to get an answer.

 

What if the court orders give each joint managing conservator the independent right to make decisions concerning the child's education? Using the same example, one joint managing conservator could give permission for the child to play football. The other joint managing conservator could expressly forbid it. Under most court orders of this nature, one joint managing conservator's independent decision is not entitled to any more weight than the other's independent decision. Unless or until one or both joint managing conservators seek clarification from the court, the issue is unresolved.

 

F. Nonparent Conservators

Nonparents, including grandparents, aunts, uncles, and stepparents, can and frequently are appointed as conservators for the children. As with parents, they can be appointed sole managing conservators, possessory conservators, and joint managing conservators. Their rights are similar to those of parent sole managing conservators, possessory conservators, and joint managing conservators.  (See end note #9.)  A nonparent conservator has the right of access to medical, dental, psychological, and educational records of the child.  (See end note #10.)

 

IV. POSSESSION ORDERS

While orders about conservatorships state which decisions each conservator can make for the child and what rights and duties each conservator has, possession orders inform each party when that party is entitled to have the child with him or her. A myth about possession orders in joint managing conservatorships is that joint managing conservators have equal or nearly equal possession of the child. A court is not required to make such an order.  (See end note #11.) Indeed, courts rarely give conservators equal possession of children, although parties sometimes agree to equal or nearly equal divisions of time.

 

In most cases involving children over three years of age, the court will give the possessory conservator or the joint managing conservator who does not have the exclusive right to establish the primary residence of the child possession (i.e., visitation) in accordance with the Standard Possession Order. In a nutshell and absent any agreement to the contrary by the parties, the Standard Possession Order gives this non-custodial parent possession of the child on the first, third, and fifth weekends of each month; on Wednesday evenings during the school year; in alternate years Thanksgiving vacation; in alternative years either the first or the second half of Christmas break; in alternative years spring break; Mother or Father's Day weekends; and thirty days in the summer. Any possession order poses the problem to a teacher and the school that the parent who picks the child up in the afternoon may not be the one who returns the child the next school day and vice versa. Consequently, messages, materials, and possibly homework sent home with the child may not be acted on as required because of poor or no communication and/or cooperation between conservators. By talking with each conservator, a teacher may be able to promote necessary cooperation for the child's sake to which the conservators would not agree if left to themselves.

 

Parties with rights to possession of a child almost always are entitled to agree to whatever periods of possession they want. They are encouraged by the courts to be flexible. The detailed provisions of possession orders, including the Standard Possession Order, are relevant only if the parties cannot reach an agreement about possession on a particular day. In that event, each party knows its rights.

Schools need to know what the court orders say because schools are a place at which one parent (or a nonparent) can try to violate a possession order by picking up a child outside of his or her possession periods. Absent notice from the party with the right to possession of the child on the particular day, no one not designated by that party should be picking up the child. Of particular importance are provisions requiring a parent to. have only supervised visitation of the child due to evidence of abuse or neglect or the threat of abuse or neglect. These provisions can occur in temporary orders, a decree or other type of final order, or in a family protective order. For the sake of the children, schools need to know about these restrictions and take reasonable action to enforce them.

 

Schools and school personnel also need to be aware that there is a civil cause of action for interference with possessory interest in a child. A person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person. A possessory right is violated by the taking, retention, or concealment of a child at a time when another person is entitled to possession of or access to the child. (See end note #12.)  A person who aids or assists in conduct that interferes with a person's possessory interest in a child.  (See end note #13.)

 

A person who was not a party to the suit in which the possession order was rendered is not liable unless the person at the time of the violation had actual notice of the existence and contents of the order or had reasonable cause to believe the child was the subject of an order and that the person's actions were likely to violate the order. (See end note #14.)  An employee of the school in which the child is enrolled might have difficulty showing that he or she did not have reasonable cause to believe the child was the subject of an order and that his or her actions were likely to violate the order. To avoid the threat of a suit by an angry parent and to cut short any confrontations, school personnel need to know what the orders say or at least have ready access to these orders to consult them and speedily resolve any questions.

 

V. TYPES OF FAMILY LAW SUITS AND ORDERS

 

A. Divorce Suits

The classic and most numerous types of orders arise in the context of a divorce. There are generally three types of orders in a divorce suit: a temporary restraining order, a temporary order, and a final decree of divorce. The temporary restraining order or TRO can be issued without a hearing when one party files for divorce. No evidence of misconduct or the likelihood of misconduct by the other party is necessary to obtain a TRO; the law provides this remedy automatically in divorce suits. A TRO is binding only on the party BEING served with it. It serves to preserve the status quo until a temporary hearing can be heard. For these reasons, a TRO is effective for a maximum of 14 days. Before its expiration the court will hold a temporary hearing, a mini-trial, at which both parties have the opportunity to give evidence and seek relief from the court. A TRO cannot give the party serving it (generally the petitioner in the suit) the right to custody of a child or the exclusive right to use or occupy any property, including the marital residence.

 

After the temporary hearing, the court will issue temporary orders. Unless modified, these temporary orders will govern the parties' relationship with each other and with any children of the marriage. If there are children of the marriage, these orders will set forth the temporary conservatorships for the child, including whether any nonparent have rights to the child. A temporary possession order will also be included, which may include any restriction on a party's possession of or access to a child, such as possession only if supervised by the other parent or by a grandparent. Because of the volatile nature of divorce suits, schools must have copies of temporary orders as soon as they are available, and the people in the schools who have control over children affected by temporary orders need to be aware of the contents of those orders.

Insofar as it affects the child, the structure of the final decree of divorce is similar to that of the temporary orders. The conservatorship and possession orders are now final, at least until a new suit is filed to modify those provisions.

 

B. Paternity Suits

A suit for paternity of a child is similar to that of a divorce suit, although normally a TRO will not be issued. Temporary orders are available. Paternity suits are not restricted to babies. For a child without a presumed father, a paternity suit may be brought any time before the second anniversary of the date the child becomes an adult.

 

C. Modification Suits

A suit to modify a final order, whether it is a final decree of divorce, a paternity order, or another order affecting the parent-child relationship, is also similar to a divorce suit. As with paternity suits, TRO are generally not issued in modification suits, although temporary orders are common.

 

D. Protective Orders

If there has been family violence, a court may issue a temporary ex parte protective order or a protective order, or both, to protect a child or adult. These orders can prohibit a parent from communicating with the child and from coming within a specified distance of the child's school.  (See end note #15.)  A protective order can prohibit the offender from removing the child from the possession of the other parent or it can include a possession order for the parents.  (See end note #16.)

 

A temporary ex parte protective order is granted after an informal hearing at which the alleged offender is not present. It is valid for a maximum of 20 days, although it may be extended for additional 20-day periods.  (See end note #17.)  A court will normally set a hearing on the protective order before the expiration of the 20-day period.

 

A protective order may last for a maximum of two years. If no expiration date is stated in the protective order, it expires on the second anniversary of the date the order was issued. (See end note #18.)

 

Schools must know if a student is affected by a protective order and must know the duration of that order. If a protective order or temporary ex parte protective order prohibits a person from having contact or having unsupervised contact with a child, the school must act to prevent a violation of the order. No one but the court can waive the restrictions in a protective order or temporary ex parte protective order, not even a parent who is protected by that order. Under penalty of contempt of court, no person, including a person protected by the protective order, may give permission to anyone to ignore or violate any provision of the order during the time the order is in effect. (See end note #19.)  If both parents attempt to pick up the child and one is prohibited from having contact with the child, either the school must refuse to release the child while the offending parent is present or the police must be notified.

 

VI. MISCELLANEOUS MATTERS

 

A. Consent to Treatment of a Child by a Non-Parent or Child

If the person or persons who have the right to consent to medical, dental, psychological, and surgical treatment of a child cannot be contacted and that person has not given actual notice to the contrary, among the persons may give consent are:

  • a grandparent of the child ;

  • an adult brother or sister of the child;

  • an adult aunt or uncle of the child; and

  • an educational institution in which the child is enrolled that has received written authorization to consent from a person having the right to consent.

          (See End note #20)

 

Obviously, a school needs to know if there is a court order affecting the child and if so, which person or persons under that court have the right to consent to medical, dental, psychological, and surgical treatment of the child.

 

B. Report of Abuse or Neglect

A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person must immediately make a report.21

 

A professional is held to a much higher standard. A "professional" is an individual who is licensed or certified by the state or who is an employee of facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. By statute, the term includes teachers.

 

A professional who has cause to believe a child has been abused or neglected or may be abused or neglected or that the child is a victim of an offense under the Indecency With a Child statute must make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under the Indecency With a Child statute.  (See end note #22.)

 

A report must be made to any local or state law enforcement agency; the Texas Department of Protective and Regulatory Services if the alleged or suspected abuse involves a person responsible for the care, custody, or welfare of the child; or the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred.  (See end note #23.)

 

The report should reflect the reporter's belief that a child has been or may be abused or neglected or has dies of abuse or neglect and if known, shall identify the name and address of the child, the name and address of the person responsible for the care, custody, or welfare of the child, and any other pertinent information concerning the alleged or suspected abuse or neglect.   (See end note #24.)

 

The law gives people an incentive to report abuse or neglect of a child if there is any doubt. A person who has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report commits a Class B misdemeanor.  (See end note #25)  

 

A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.  (See end note #26.) 

 

Unless waived in writing by the person making the person, the identity of the person making the report is confidential.  (See end note #27.)

 

VII. CONCLUSION

Who should have the burden to see that the school has a copy of any court orders relevant to the child? As family law practitioners, we try to impress upon our clients the importance of providing the schools with the current court orders. However, the schools should also share the responsibility to have a copy of the order in the child's records, since there are many consequences harmful to the child when the school is caught in the middle of parents' or other parties' disputes. It could be a requirement for registration of the child into school to require a copy of the relevant court order, similar to immunization records. If the child's school and teachers are fully informed of the situation and have an understanding of what the court has ordered for the particular child, it will help create a more secure and stable environment for the child.

 

END NOTES

 

To find the following visit:

http://www.capitol.state.tx.us/statutes/fa.toc.htm

 

1 Texas Family Code ��� 151.003(a).

 

2 Texas Family Code � 151.003(d)(3).

 

3 Texas Family Code � 101.003(a).

 

4 Texas Family Code � 31.001(a).

 

5 Texas Family Code � 31.005.

 

6 Texas Family Code �� 153.073; 153.076

 

7 Texas Family Code � 153.074.

 

8 Texas Family Code � 153.132.

 

9 See Texas Family Code �� 153.371; 153.376.

 

10 Texas Family Code � 153.377; see also Texas Family Code �� 153.371, 153.3721.

 

11 Texas Family Code � 153.135.

 

12 Texas Family Code � 42.002.

 

13 Texas Family Code � 42.003(a).

 

14 Texas Family Code � 42.003(b).

 

15 Texas Family Code �� 85.022(b)(2)(4).

 

16 Texas Family Code �� 83.001; 85.021(1)(A)(i); 85.021(3).

 

17 Texas Family Code � 83.002.

 

18 Texas Family Code � 85.025(a).

 

19 Texas Family Code � 85.026(a).

 

20 Texas Family Code � 32.001(a).

 

21 Texas Family Code � 261.101(a).

 

22 Texas Family Code � 261.101(b).

 

23 Texas Family Code � 261.103. A report may also be made to the agency designated by the court to be responsible for the protection of children.

 

24 Texas Family Code � 261.102.

 

25 Texas Family Code � 261.109.

 

26 Texas Family Code � 261.106(a).

 

27 Texas Family Code � 261.101(d).