Can You Still Access Your Child’s Education Records After a Divorce?

FERPA: What governs parental access to educational records?

The Family Educational Rights and Privacy Act (“FERPA“) is a federal statute that grants parents certain rights concerning their child’s educational records until the child turns 18 years old, at which point the rights transfer to the child. FERPA  has two main goals, one of which is to grant parents access to their children’s educational records. The other goal is to limit the access of outsiders to such records. The Ohio Student Records Privacy Act is the equivalent state statute. While the Ohio Student Records Privacy Act only applies to public schools in Ohio, FERPA applies to all educational agencies receiving federal funds.

The rights afforded to parents under both statutes include the right to access their child’s education records, to seek to have the education records amended, and some control over the disclosure of personally identifiable information from the education records.

“Education records” refer to the records maintained by an educational agency, institution, or agent of such and covers all permanent educational records  made by and kept on behalf of the school system. Examples include grades and disciplinary records. Under both statutes, schools must have procedures in place to grant parental requests for records within a reasonable time that does not exceed 45 days.

The types of educational records not subject to mandatory disclosure

Several types of documents are not classified as educational records, and thus are not subject to mandatory disclosure. One such type not covered are records made by educational personnel that are kept in their sole possession containing their private notes. A second type of records not covered by the educational record classification are records kept by law enforcement units of educational agencies used only for their own purpose.

A third type of record not classified as educational records are those made in the ordinary course of events relating to employees of educational institutions and refer solely to their capacity as an employee. A final type not classified as an educational record are records made by physicians, psychiatrists, psychologists, or other professionals for use in the child’s treatment.

Due to the rights parents have regarding their child’s educational records, a common question is what happens to those rights once the parents are divorced. As with most legal questions, “it depends.”

Can divorce cutoff access to your child’s educational records?

Under FERPA, a parent is defined as “a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.” FERPA does not differentiate between custodial and noncustodial parents. Thus, both custodial and noncustodial parents have the same rights to their child’s education records.

However, a parent’s rights to their child’s educational records may be revoked or modified if the school or educational agency receives notice of a court order that specifically revokes a parent’s rights under FERPA. Therefore, unless there is a court order or state law to the contrary, noncustodial parents have the same rights as custodial parents under FERPA.

What if you are a stepparent, do I have the same rights under FERPA?

In a letter from the Director of the Family Policy Compliance Office, the term “parent” as used in FERPA can include stepparents in certain situations. Specifically at issue is the part of the definition of a parent as “an individual acting as a parent in the absence of a parent or a guardian.” The Department of Education has determined that if a parent is not present in the day-to-day home environment of the child, that parent is “absent.”

The stepparent is considered to have rights under FERPA when he or she is present on a day-to-day basis with the child’s natural parent and the other parent is absent from the home. In this case, the stepparent would have the same rights under FERPA as the natural parent. However, if the stepparent is not present on a day-to-day basis, he or she does not have any rights under FERPA as to the child’s education records. For example, if the stepparent moves out of the house or separates from the natural parent, the stepparent would lose his or her rights under FERPA.

PUBLISHERS NOTE: I want to thank Ashlyn O’Brien, a third-year law student at the University of Dayton School of Law, for all of her assistance in drafting this blog article. Excellent job Ashlyn!

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