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The School Records Access Law Can Promote Children's Safety and Education at School and Home

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Produced by Massachusetts Law Reform Institute

1. Who can get a child's school records?

A student's parent or legal guardian; an eligible student (a student who is
fourteen (14) years old or a student who has entered the ninth (9th)
grade or an agency legally authorized to act on behalf of the student in
place of or in conjunction with the father, mother, or legal guardian. 603
Code of Massachusetts Regulations (CMR) 23.02 (2006). Examples of such agencies
include the Department of Children and Families (DCF) and the Department of Youth
Services (DYS).

2. Are both parents entitled to their child's school records?

Generally, yes. Both mothers and fathers can usually have access to their
child's school records. Non-custodial parents can usually have access to these
records.

3. When is a parent not allowed to see or get copies of their child's school
records?

Certain abusive "non-custodial" parents are not allowed to see or get copies
of their children's school records.  An abusive non-custodial parent is
not allowed access to the records if:

  1. their access to the child is currently prohibited by a temporary or permanent
    protective order (such as a restraining order), except where the protective
    order, or any subsequent order which modifies the protective order, specifically
    allows access to the information;
  2. they are denied visitation by a court order; or
  3. they are denied "legal custody" based on a threat to the safety of the
    child or by court order are only allowed to  have supervised visitation,
    based on a threat to the safety of the child, and the threat is specifically
    noted in the custody or supervised visitation order; or
  4. there is a Probate and Family Court order which specifically prohibits
    distribution of the student records to the parent.

Massachusetts General Laws, Chapter 71, section 34H(a)

4. What is a "non-custodial" parent?

A "non-custodial" parent, for purposes of access to school records, includes:

  • any parent who by court order does not have physical custody. This includes
    parents who by court order do not reside with or supervise the student, even
    for short periods of time.   603 CMR 23.02
  • the father of a child born to parents who are not married to each other,
    unless a court order says otherwise or unless the child lives with the father.  Massachusetts General Laws, Chapter 209C, section 10(b)

A "non-custodial" parent does not include:

  • either parent, when they are married to each other but separated, if there
    is no court order about custody. In that case, neither of them is a "non-custodial" parent.

5. What does it mean that a parent has "legal" custody?

A parent who has "legal" custody has the right and responsibility to make
the major decisions regarding the child's welfare, including education, medical
care, and emotional, moral and religious development. "Sole" legal custody
is where one parent has the right and responsibility to make these major decisions,
and "shared" legal custody is where both parents have the right and responsibility
to make these major decisions.

6. What is a "custodial" parent?

For the purposes of school records, a "custodial" parent is a parent with
whom the child lives.

7. How does a parent get a copy of their child's school records?

All parents must submit a written request to the school principal.

Massachusetts General Laws (G.L.) c. 71, § 34H(b).

8. Does it make a difference whether the parent requesting the records is
a custodial parent or a non-custodial parent?

Yes. For non-custodial parents there is a 21 day waiting period (see Question
12) after the school notifies the custodial parent  of the request.   There
is no waiting period for custodial parents. Custodial parents are entitled school records "as soon as practicable and within ten days
after the initial request." 603 CMR 23.07. If you are a custodial parent, it
is important to be sure that school officials know that the child lives with
you.

9. Do you have to prove to the school that you are a custodial parent in
order to get the records "within ten days"?

No.

10. Do non-custodial parents have to prove to the school that they are eligible
to receive school records?

No.

11. Will the school automatically give a copy of the student records when
asked by a parent?

No. The school must first review the student's record for any documents limiting
or restricting parental access to the student's records or information which
have been provided to the school or school district. G.L. c. 71, § 34H(c).
The school must immediately notify a custodial parent of a request for school
records made by a non-custodial parent. G.L. c. 71, § 34H(c). If the
non-custodial parent requests the records, and there are no documents in the
file limiting access, the school will provide the material after a waiting
period.

12. Are schools required to notify custodial parents that a non-custodial
parent has requested the records and tell them about the waiting period and
about what else will happen?

Yes.

The school must notify the custodial parent that a request has been made.
The school must then wait 21 days before giving the records to a non-custodial
parent who has requested the school records. After a non-custodial parent requests
the records, the school must immediately notify the custodial parent by certified
and first class mail
, in the custodial parent's primary language and in
English of the request. The notice must inform the custodial parent that the
school records information will be provided to the requesting parent after
twenty-one (21) days unless the custodial parent provides the principal of
the school with documentation of any court order which prohibits contact with
the child, or prohibits the distribution of the school records or if there
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 modifies the protective order
and specifically allows access to the school records information. G.L. c. 71, §34H(c)

If the custodial parent does not provide the school with documentation that
the non-custodial parent is not eligible for access to the school records,
the school will provide the non-custodial parent with the records.

If the custodial parent does provide the school within 21 days documentation
that the non-custodial parent is not eligible for access to the school records,
the school must not provide the non-custodial parent with the records.

13. What can you do if you receive a notice that the non-custodial parent
has requested the records, and you do not want the non-custodial parent to
have access to the records?

Custodial parents who do not want the non-custodial parent to have access
to the school records must, within the 21 day waiting period, provide the principal
with documentation of any court order which prohibits or restricts contact
with the child, prohibits distribution of school record information, or which
is an order issued to protect the child from abuse by the non-custodial parent
requesting the records. For the documentation to be effective in keeping the
school from distributing the records, the orders should contain one or more
of the provisions described in Question 3.

14. What can you do to be sure that a non-custodial parent, who is not eligible
to receive school records (see Question 3), does not get the school records.

If there is a current order that has one or more of the provisions listed
in Question 3, immediately give a copy to the principal. Also, you can write
a letter to the principal saying that you are the custodial parent and that
if the non-custodial parent asks for the child's school records, the school
is to notify you. Ask the school to put this letter into the child's records.

15. If a court order prohibits a non-custodial parent's access to school
records, is that parent automatically prohibited from coming to the school
or attending meetings with teachers?

The law is not clear on this issue. If you are concerned about risks of abuse
to yourself or your child or disruptive interference with your child's education
should the non-custodial parent come to the school or attend teacher meetings,
you should inform the school about your concerns.  You should also give
the school documentation of any court order that prohibits access to the records.
In circumstances like this, you can request the school not to permit the other
parent to meet with school personnel, come to meetings, or come to the school.
Everyone should remember that communications among teachers, staff, and parents
are likely to include information that is contained in the student's record,
and that where one of the parents is ineligible to have access to that information
the wisest course is not to permit ineligible parents to be involved in these
conversations.

Parents who are eligible to receive school record information are not automatically
allowed to participate in school proceedings about which they have received
notice. G.L. c. 71, § 34H(a).

Non-custodial parents who are eligible to receive school record information
are not automatically authorized to participate in school proceedings and decisions
unless there is a custody order that says they are. G.L. c. 71, § 34H(a).
Thus a non-custodial parent who does not have shared or sole "legal" custody
is not authorized to participate in these proceedings and decisions.

16. What is the "student record"?

The student record consists of the transcript, and the temporary record, including
all information recording and computer tapes, microfilm, microfiche, or any
other materials concerning a student that is organized on the basis of the
student's name. The temporary record consists of all information in the student
record which is not contained in the transcript and is important to the educational
process. 603 CMR 23.02

17. What can you do if you have been in an abusive relationship and have
fled your abusers to prevent the abuser from finding you through information
in the school records?

The law requires that custodial parents' electronic and postal residential
and work addresses and telephone information be removed from school records
when they are released to a non-custodial parent. 603 CMR 23.07(5)(e). One
precaution you can take is to review the file with school personnel to be sure
that the record has no address or telephone information.

18. Does the law require school to remove residential and work address and
telephone information before releasing school records to a non-custodial parent
whether or not there has been abuse or domestic violence?

Yes. 603 CMR 23.07(5)(e).

19.What can a school do to comply with the laws pertaining to providing non-custodial
parents with school records?

See A
Checklist for School Officials

Produced by Massachusetts legal services' Domestic Violence and School Safety Workgroup
Created January, 2007
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