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Saturday, November 19, 2011

Court finds that Non-custodial Parent does not have right to children at school

Recently, the Court of Appeals came out with a decision affirming that a non-custodial parent does not have a constitutional right to visitation with their children at school, if the divorce decree and visitation order does not allow such an order.

The case was Schmidt v. Des Moines Public Schools, 8th Circuit Court of Appeals, and can be found here:

The mother in this case was awarded shared custody, but the father in Iowa was awarded physical custody.  The order also set forth a schedule granting Lisa Schmidt visitation periods with the children during certain holidays and school breaks. It provided for additional visitation only “as mutually agreed to by and between the parties so as not to interfere with the health, education and welfare of the parties' minor children.”

On several occasions, Schmidt unsuccessfully attempted to visit the children at their schools during the school day. In some cases, school officials told the children that Schmidt was at the school and wanted to visit with them. The children told the officials that they did not want to see Schmidt, and Schmidt was not granted access to the children. On one occasion, Schmidt attempted to visit one of the children during a school performance, and a school official told her that the child was not at school.  Schmidt's ex-husband sent several letters and e-mails to school officials during this period. The correspondence informed them about the terms of the court orders and asked them not to permit Schmidt to visit the children during school hours or to withdraw them from school.

In an appeal involving only procedural due process, the court has held that a noncustodial parent with visitation rights has, “at least in some form,” a liberty interest in the care, custody, and management of his child. Swipies v. Kofka, 419 F.3d 709, 714 (8th Cir.2005).

The court held several important points:

It is not clear that a parent's fundamental liberty interest in the care, custody, and management of her children includes unfettered access to the children during a school day. See Meadows v. Lake Travis Ind. Sch. Dist., 397 F. App'x 1, 2 (5th Cir.2010) (per curiam); Crowley v.. McKinney, 400 F.3d 965, 969 (7th Cir.2005); Bangura v. City of Phila., No. 07–127, 2008 WL 934438, at *4 (E.D.Pa. Apr. 1, 2008). But whatever the scope of that liberty interest, it can be “substantially reduced by the terms of [a] divorce decree and [state] law.” Zakrzewski, 87 F.3d at 1014.

It was reasonable for the defendants to construe the court orders to prohibit Schmidt from interrupting the children's school day without the prior consent of her ex-husband, particularly in light of the proviso that additional visitation with the children must be arranged “so as not to interfere with the education of the parties' minor children.” The doctrine of substantive due process is reserved for truly extraordinary and egregious cases; it does not forbid “reasonable, though possibly erroneous, legal interpretation.” Brittain, 451 F.3d at 996.

Schmidt asserts that she also demonstrated that the defendants violated her procedural due process rights by infringing on her parenting liberty interest and leaving her “without recourse to a state law remedy.” Even assuming that Schmidt demonstrated an infringement on a protected liberty interest, the state-law procedures in place to remedy such violations were sufficient to provide her with due process. If Schmidt believed that the defendants were misinterpreting the divorce decree's visitation provisions, she could have sought modification of the decree in state court at any time. See In re Marriage of Brown, 778 N.W.2d 47, 51–52 (Iowa Ct.App.2009). Schmidt could have submitted a formal written request to the school district for the educational records and information she sought about the children, pursuant to the school district's policy concerning noncustodial parents. Schmidt also could have requested a contempt proceeding in which the state court could order Schmidt's ex-husband to permit the schools to provide any information that Schmidt requested. See Iowa Code § 598.23(2)(d). Schmidt eventually pursued the latter course, and the state court issued an order in September 2008 requiring Michael Schmidt to “execute any and all documents necessary to allow [Schmidt] access ․ to any and all records or documents concerning the parties' minor children including ․ school records.” Given the limited nature of any infringement on Schmidt's protected liberty interest, these procedures were sufficient to protect Schmidt's right to procedural due process. 

So what to make of all of this?  Basically this case says that schools districts should be able to grant parents equal rights, unless a court order, such as that coming from a divorce, limits the rights a parent has to her children while they are in school.

If you are a parent who has sole or shared custody, and have a visitation schedule set up that does not include days or times when the children are at school, then make sure you tell the school district that they should not allow access to your children while they are at school to the non-custodial parent.

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