ADVANCED LEGAL SEMINAR GEORGETTE WRIGHT
HONORS CLASS MAY 14TH, 2012
CULMINATION PROJECT
THE RIGHTS OF A NON-CUSTODIAL PARENT
This paper will be discussing the law concerning the rights of a non-custodial parent when it comes to making educational decisions for a child. When two people embark on the journey of bringing a child into the world, it is usually under the assumption that both parents will be involved in the lives of their child. This is not the case where there has been a marriage between parents that ends in divorce. The parent who is granted custody of the child, maintains all decision making authority concerning the child’s education. Only if there are stipulations established in the divorce decree, will the non-custodial parent maintain equal decision making rights and this is not usually the case. The law in New York states that “When sole custody has been awarded to one parent, the custodial parent, absent an enforceable agreement, has the sole authority and discretion to decide matters of the child’s education.”(45 N.Y. Jur.2d Dom. Rel. Law § 34.01)
In the case of Page v. Rotterdam-Mohonasen Central School District 109 Misc. 2d 1049, 441 N.Y.S.2d 323 (N.Y. Sup. Ct. 1981), we will be examining the rights of a non-custodial father who is not divorced from the custodial mother. Mr. Page, (the petitioner) in this case suesthe Rotterdam-Mohonasen Central School District after requesting to review his son Eric’s educational records. Eric Page was a first grader who lived with his mother. His mother was legally separated from his father, the petitioner. At the request of the custodial parent, the school denied all requests by the petitioner. The school claimed that because the petitioner had separated from his family, he had forfeited any rights to inquire about his son’s education. As a result of the lawsuit, the petitioner was granted full access to Eric’s records and teachers. According to the federal statute the Family Education Rights and Privacy Act (FERPA) 20 U.S.C. §1232 (1974), regardless of custody issues, both parents have the right to inspect a child’s school records. Clearly federal law overrides New York’s Domestic Relations law mentioned earlier. I think the key and determining factor in the Page case, is that the parent’s were not divorced. The petitioner was still very much involved in the life of his son and federal law protects his right to participate in his son’s education.
It is my opinion that in most cases it is in the best interest of the child that joint custody be granted when divorce is involved. This way both parents maintain decision making authority concerning the child’s education. In the case of Parrinelli v. Parrinelli 138 Misc. 2d 49,524 N.Y. S. 2d 159 (N.Y. Sup. Ct. 1988), in an agreement that was entered into prior to divorce, the parents had agreed to jointly decide on their child Kristine’s school. The child, Kristine attended a little private school, and had been in attendance at this school from kindegarten to third grade. The non-custodial father made a motion to restrict the mother from removing Kristine from the private school and enrolling her in public school. The plaintiff mother was granted full custody in the divorce decree. The court decided that the agreement that was entered into prior to divorce was unenforceable because the agreement didn’t select a particular school and also their were no means in the agreement to resolve any disputes between the parents in regard to what school the child will attend. If the agreement was enforceable then the courts would intervene, with the best interest of the child being the motivational factor.
The next case we will focus on is Fuentes v. Board of Educ. of City of N.Y. 540 F.3d 145 (2nd Cir. 2008). In this case the parents were divorced. The mother was given custody of the children including M.F.. M.F. has a genetic disorder, and is also legally blind. M.F. attended public school in New York City and received special education services to accommodate his disability. The plaintiff father was not satisfied witht M.F.’s special education services, he requested a re-evaluation. Public schools are supposed to evaluate any of their students who may possibly having a disability. In the case of M.F., this was done by the Committee on Special Education for the Hearing, Handicapped, and Visually Impaired. The Committee found that M.F.’s services were sufficient. The father again was not satisfied with the results. The plaintiff then requested a hearing to review the decision by the C.S.E., and he was denied the hearing because he was not the custodial parent.  According to New York law, plaintiff has no standing to request a hearing or even question the quality of the education that M.F. is receiving because he is the non-custodial parent.
The case was heard in the United States District Court for the Eastern District of New York. The plaintiff alleged that his rights were denied the under the federal Individuals with Disabilities Education Act (IDEA), 20 U.S. C.§ 1400 (1974). The IDEA is a federal statute which grants parents the right to review the decisions made by the Board of Education. The case was dismissed for lack of standing under the IDEA. The plaintiff appealed to the United States Court of Appeals for the Second Circuit.  addressed the issue. The Court of Appeals found the question to be “Whether, under New York law, the non-custodial parent of a child retains decision-making authority pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions”. The U.S. Court of Appeals answer was no, a non-custodial parent does not retain any decision making rights when it comes to the education of their child. A non-custodial parent doesn’t even have the right to question the quality of the education that their child is receiving. This doesn’t seem fair, but it is the law. However, if parents when divorcing decide and agree in writing to equally participate in the educational decisions of their child, this would be fair and also in the best interest of the child. But most people don’t know what the law is when it pertains to the rights of a non custodial parent.
The question of what are the rights of non-custodial parents when the child is not a special education student, the law is the same. In De Luca v De Luca 202 A.D. 2d 580 (N.Y. A.D., 1984), the father petitioned for custody of his children because he had concerns about the Jehovah’s Witness religion. Plaintiff also wanted to participate in decisions regarding the children’s medical and educational needs. It was decided that absent an agreement, the court will not interfere with the custodial parent’s decisions regarding the children’s upbringing, which includes educational decisions. Again, the court took the position of acting in the best interest of the child. It is apparent that the parent who gets custody of the child in a divorce proceeding, also gets to be the decision maker. The fact that the child is not a special education student is irrelevant.
There are some special instances where the non-custodial parent is granted the right to make educational decisions for a child and not the custodial parent. In the case of J.C. v. A.T. 16 Misc. 3d 1131, 847 N.Y.S. 2d 902 (N.Y. Fam. Ct., 2007), a divorce proceeding, the father-respondent sought to have the right to make the major decisions concerning the child’s education. A temporary custody agreement granted custody to the mother-petitioner and visitation to the father-respondent. At a hearing held at a later date, the parents could not agree on custody. The petitioner-mother sought sole custody and the father sought joint custody. After hearing testimony and evidence concerning what would be in the best interest of the child, the court ruled that the petitioner-mother would be better suited to be the custodial parent. However it was stipulated in the divorce decree that the petitioner-mother father would have the right to be consulted regarding all major decisions of the child including educational decisions. “While a parent who is granted physical custody typically is granted legal custody as well,the court may grant the noncustodial parent the right to make selected legal decisions or, conversely, may limit the legal decision-making of the parent with physical custody. Indeed, there has been an increasing tendency in more recent cases, particularly at the trial level, to recognize that the noncustodial parent may have better insight into a particular issue or issues affecting the child and, therefore, divide legal custody into spheres or zones of decision making between the parents while still granting one parent primary physical custody”. N.Y. Dom. Rel. Law § 240 (McKinney 2011)
Thus far we have examined five cases concerning the rights of a non-custodial parent when it comes to making educational decisions for a child. In the first case, the Page parents were not divorced which means that even though they were separated the non-custodial parent maintained his parental rights to access information from school authorities concerning his child’s records. Also absent a stipulation in the divorce decree, such as there was in the J.C. v. A.T. case, the non-custodial parent has no legal right (unless granted by the court), to make educational decisions for a child.
Divorce is an unfortunate circumstance, especially when children are involved. Absent an agreement to have joint custody, the children are usually the victims of a tug of war between the parents. Both parents want to control and have input in making all decisions concerning their child. But when it comes to making educational decisions the law clearly supports the custodial parent’s right to make these decisions.
