A Principal’s Guide to Custody Disputes, Subpoenas, and Other

Court-Related IssuesSteve Williams Harding & Shultz (402) 434-3000swilliams@hslegalfirm.com

H & S School Law@SteveisEsteban

Child Custody “Custody” includes “legal custody” and

“physical custody” Legal – authority and responsibility for

making fundamental decisions regarding child's welfare, including choices regarding education and health Physical – authority and responsibility

regarding child's place of residence and exertion of continuous parenting time for significant periods of time

Child Custody Joint legal – mutual authority and

responsibility for making mutual fundamental decisions regarding child's welfare, including choices regarding education and health Joint physical - mutual authority and

responsibility regarding child's place of residence and exertion of continuous blocks of parenting time by both parents over child for significant periods of time. Neb. Rev. Stat. § 43-2922.

Child Custody Documents Property Settlement Agreement Parenting Plan Temporary Orders Decree

Misc. Custody Issues Visits at school Students who live with grandparents,

guardians or other relatives Children in custody of HHS Stepparents Student born to unmarried parents Paternity established

v. Paternity not established

Access to Student Records State Section 42-381 – both parents continue to

have “full and equal access” to education records unless court orders to contrary

Federal FERPA: Non-custodial parents have same

rights as custodial Unless there is evidence of a legally binding

document that specifically revokes rights (34 C.F.R. 99.4)

Access to Student Records Written consent generally required for

anyone other than parent, guardian, or student Special Education - IDEA gives rights to

parents, foster parents, in loco parentis

Custody, Access, & Parental Decisions

Parental rights resulting from custody arrangements:

TYPE OF CUSTODY

RIGHT TO INSPECT AND REVIEW EDUCATIONAL MATERIALS

RIGHT TO REQUEST AMENDMENT OR REMOVAL OF RECORDS

RIGHT TO ATTEND IEP MEETINGS

RIGHT TO CONSENT TO EVALUATIONS, TO IEP, AND IDEA MATTERS

RIGHT TO FILE FOR DUE PROCESS AND MEDIATION

SOLE CUSTODY(Legal Custody)

Yes Yes Yes Yes Yes

NON-CUSTODIAN (visitation or physical custody)

Yes Yes Yes No No

JOINT LEGAL CUSTODY

Both parents have this right

Both parents have this right

Both parents have this

right

Each parent has right; Only one

signature required

Each parent has this right

Access to Children at School Custodial and non-custodial parents

have equal access to children at school subject to any school policies UNLESS there is a court order limiting or eliminating access. In Loco Parentis rights are secondary to

rights of parents. Emergency exception

Release of Children Same rules as access to children Pauley v. Anchorage SD , 31 P.3d 1284

(Ak. 2001)

Release of ChildrenPrevention Require certified court orders – review for

limitation or elimination of parental rights ONLY Note and document any restrictions Notify appropriate school personnel

Release of ChildrenIf Removal is Requested Verify identity of person seeking release Obtain approval for releases not previously

authorized Contact parent if child is reluctant or you

have any concerns Contact law enforcement if necessary

Release of ChildrenIf Child Taken Without Permission Contact law enforcement Notify parents and school administrators Comply with flagging laws or policies

Providing Information

Attorneys will generally seek information from you in one of four ways: Informal DiscussionsAffidavitDeposition TestimonyTrial Testimony

Informal Contacts & Affidavits

You are not required or obligated to speak to attorneys, respond to their phone calls or letters, or complete or sign an affidavit, so . . . DON’T!

Responding to Subpoenas

Schools have unique obligationsWhat is a subpoena? Legal document Issued by state or federal court,

administrative agency, or other authorized person Requires you to provide testimony or

documents or other items It is NOT a court order

Types of Subpoenas

Subpoena for Documents Subpoena Duces Tecum Requires production of documents,

materials, or other tangible itemsMay or may not require personal

appearance

Types of Subpoenas

Deposition Subpoena Questioning witness under oath Required to appear at designated time and

place Subject to special rules Preserves testimony for use in courtMay or may not be required to produce

documents or other tangible items

Types of Subpoenas

Trial or Court Hearing Subpoena Similar to Deposition SubpoenaRequired to appear at a trial or

hearing in person as a witness

Types of Subpoenas

Grand Jury SubpoenaUsed to gather evidence needed to

determine whether a crime has been committedMay require testimony and/or

production of documents or other things May prohibit discussion outside of

grand jury or subject to contempt

Who Issues Subpoenas?

Clerk of a Court Administrative Agencies Attorneys NotariesCustody disputes, divorce, personal

injury lawsuits, juvenile proceedings, criminal proceedings, NDE/PPC

Responding to Subpoenas

Never ignore a subpoena! Failure to Respond Sanctions Penalties or fines Contempt of court Jail

Responding to Subpoenas

Contact school’s attorney Response depends on: Is it valid?Who issued subpoenaType of subpoena Information or items requestedPersonnel recordsStudent recordsMental health/medical records

Responding to Subpoenas

Timing State CourtTrial: Must be served personally or by

registered or certified mail at least 6 days before trialDeposition: “Reasonable” noticeOther: 10 days before compliance date

Federal“Reasonable time for compliance” for

deposition, hearing, or trial

Responding to Subpoenas

Objection (Motion to Compel) Protective Order Demand advance payment for costs

of copyingMotion to Quash

Travel for Subpoenas State CourtTrial - You cannot be required to

attend a trial:Out of the state where you are served orAt a distance of more than one hundred

miles from the place of residence or from place where you are served with subpoena, unless within the same county“Good cause” exception – requires

deposit of fees and expenses

Travel for Subpoenas

State CourtDepositionParty:Non-party:Cannot be required to attend deposition

outside county of residence or outside the county where the subpoena is served.

Travel for Subpoenas

Federal - Required to travel if served:Anywhere in court’s jurisdictionWithin 100 miles of location of eventAnywhere within the StateNote: Court MAY quash subpoena if

it requires “substantial expense” or travel over 100 miles to attend trial.

Fees and Expenses Witness may demand traveling fees and

fee for one day's attendance when subpoena is served. If fees are not paid, witness is not required to obey subpoena. Request can be renewed each day. Exceptions State Government Agency Subpoenas Criminal cases.

Fees and Expenses State Government Agency Subpoenas Witness not entitled to demand fees and is

required to obey subpoena IF, at time of service, witness is furnished statement prepared by agency advising of the rate of travel fees allowable, fee for each day's attendance pursuant to subpoena, and that witness will be paid at such rates following attendance.

Avoiding ServiceThey’ll huff and they’ll puff and they’ll blow your house down!!! If witness conceals himself, or in any other

manner attempts to avoid being personally served with subpoena any sheriff or constable, having subpoena, may use all necessary and proper means to serve it, and for that purpose may break into any building or other place where witness is to be found, with proper notice.

Subpoenas and Personnel Records

Teachers, administrators and FT employees have access “No other person except school

officials while engaged in their professional duties shall be granted access to such file, and the contents thereof shall not be divulged in any manner to any unauthorized person.” Section 79-8,109

Subpoenas and Personnel Records

Fischer v. Erickson, Antelope County District Court, Case No. CI04-14 “In reviewing the complaint and

praecipe this Court finds nothing that would entitle the plaintiffs to overcome that privilege in obtaining the personnel files of Mr. Erickson.” Personnel file is privileged Court refused to order disclosure

Subpoenas and Personnel Records

Burke v. Burke, Gosper County District Court, CI02-1 “The court examined Neb. Rev. Stat. §

79-8,109 and finds such section does not preclude the court from issuing the order sought by [the husband].” Court ordered in-camera review Personnel file, if released to husband,

subject to protective order

Subpoenas and Student Records

Federal Educational Rights and Privacy Act (FERPA) Federal funds will not be provided to

schools that have “a policy or practice” of releasing education records (or personally identifiable information) of students except as allowed by FERPA exceptions

Subpoenas and Student Records

FERPA exception: If the information is furnished in compliance with judicial order or in response to any lawfully issued subpoena IF the parents and students are notified of the order or subpoena in advance of the school’s compliance. Directory info may be release w/ or w/o a

subpoena if parents have not opted out

Subpoenas and Student Records

Options Come to agreement with requestor to

comply with applicable law (i.e. written consent)Move to quash the subpoena Seek protective order Notify parent or student in advance of

compliance and allow them to take action

Subpoena Tips

Stay out of it if at all possible! Don’t speak to attorneys voluntarily

before talking to your/school’s attorney Refuse the service of subpoena

during working hours Demand your fees Notify the administration

Subpoena Tips

Contact school attorney upon receiptTalk to parent’s attorney Seek Motion to QuashAdvise you on what to expectProvide “tips for testifying”

Include discussion about subpoenas in yearly trainings with staffWork with attorney to develop form

letter responses

Subpoena Tips

Notify employee if receive subpoena for personnel records Follow Court’s Orders Always give notice to parent or

student before complying with subpoena for student records Secretaries and bookkeepers

Tips for Court/DepositionsMany “tips for testifying” but always remember these 2 “Cardinal Rules:”

(1) Always tell the truth.(2) Answer the question that has

been asked.

Tips for Court/Depositions Stick to your expertise as an educator,

not as a parent, social worker/ psychologist, general member of the community. Just the facts! Refuse to offer opinions! Strictly observe state and federal student

confidentiality laws.

A Principal’s Guide to Custody Disputes, Subpoenas, and Other

Court-Related IssuesSteve Williams Harding & Shultz (402) 434-3000swilliams@hslegalfirm.com

H & S School Law@SteveisEsteban