Custodial Arrangements and Educational Issues

The different custodial arrangements give caregivers different rights and responsibilities when dealing with the child’s educational issues.  Currently, legislation is pending to change the rights of caregivers who do not have guardianship.  Visit www.mainekids-kin.org or call us at 1-866-298-0896 for up-to-date information.

Parents (biological and adoptive) have various rights and responsibilities regarding their children’s education.  Some of these rights and responsibilities are passed on to the caregivers in other arrangements described in the earlier sections.  This can get very complicated. Guardians, fosters parents, and other caregivers often become confused about what they can and cannot do regarding the child’s education. 

The following sections discuss school laws and how they relate to grandfamilies. 

Residency Requirements for School Enrollment

Students are legal residents of the school district where their parent or legal guardian with custody lives (even if the student doesn’t live with them).  There are some exceptions.  The student may get an exception if the student lives in the school district and:

• is in DHHS custody,
• emancipated by the District Court,
• 18 years old or
• married 

If the student is not living with a parent or legal guardian and does not meet the criteria listed above, the superintendent of the school district where the student is currently living may grant an exemption based on the following criteria: 

• it is impossible or impractical for the student to live with either parent
• the student is not living with someone in that school district for the sole purpose of going to that school
  
• it is in the student’s best interest to attend school in the school district where they are currently living

To get this exemption, send a letter to the superintendent explaining the student’s situation and ask that the student be allowed to enroll in that school district.  Sometimes it is helpful to discuss the situation with a guidance counselor before approaching the superintendent.

Sometimes the superintendent will make a superintendents agreement with the superintendent of the school district where the student would be expected to go.

Finally, if a student is staying with you temporarily, the student may be considered a homeless student.  In that case, the student can attend the school where the student is living or the school they attended before coming to live with you.  Each school district has a School Homeless Liaison to ensure that homeless children are enrolled in school and receive the educational services for which they are entitled.  For more information about School Homeless Liaisons, visit Keeping Maine’s Children Connected or contact them at 207-822-0172.

Educational Disruption

Reducing educational disruptions for a student is important.  If a student is moving between school districts, consider requesting a residency exception to keep the child in the same school district, especially if the move may only be temporary.  To help a child make a smooth transition, contact the school’s guidance department.  If you want additional assistance, contact the school liaison.  To find your school liaison through Keeping Maine’s Children Connected, visit Keeping Maine’s Children Connected or contact them at 207-822-0172.

Students who experience education disruption are defined as students who have 10 or more school absences in a row because of a change in placement.  This includes absences due to foster care, unplanned hospitalization, detention at a youth development center, homelessness, or similar situations.  The student may enroll in a new school (sometimes temporarily) as a result. In this case, the new school must appoint a staff member to ensure that the school records (including grades, academic materials, and credits) from the former school are obtained within 5 school days after the student enrolls in the new school.  There must be a school work recognition plan for the new (and often temporary) school placement.  The plan must be developed within 10 school days. This plan must be in writing and outline how the student will complete work for credit to meet the student’s goals.  If the student is a junior or senior in high school, the plan must include how and when the decision will be made as to whether the student has met the requirements for a diploma.

Truancy

The adult responsible for a student of compulsory school age (ages 7-16) must ensure that the child attends a school program (public school, private school, or home school).  This is true regardless of the adult’s legal relationship with the child.  Truancy means the child is too often absent from school without an excuse.  Too often is defined according to age.  Children who are at least 7 years old, but not yet in 7th grade, are truant if they have 5 unexcused absences in a row or 7 total unexcused absences in a school year.  These children may also be found to experience educational neglect resulting in a report to DHHS child protective services.  Children in 7th - 12th grade, and not yet 17 years old, they are truant if they have 7 unexcused absences in a row or 10 total unexcused absences in one school year.  The school must work with the student and caregiver to reduce the student’s truancy.  Contact Kids Legal for more information at www.kidslegal.org or 1-866-624-7787.

Discipline

Sometimes a school will temporarily not allow a child to attend because of a child’s behavior.  This is called a suspension.  If a school plans to suspend a student for more than 10 school days for disciplinary reasons, the student has a right to a hearing before the school board.  This is treated as an expulsion hearing, and the student can have an attorney represent him or her.  If a school board expels a student, it is for an indefinite period of time and it applies to every Maine public school district.  A student can ask for another school board hearing to argue that they should be allowed to return to school.   At that hearing, the student will need to show that he or she is not likely to repeat the behavior that resulted in the expulsion.  A child who is in special education should not be kept out of school for behavior related to the child’s disabilities.  Parents or guardians with a child in this situation should request a meeting to make sure the child’s Individual Education Program (IEP) is meeting the child’s needs. (See next section)

Special Education

Children with disabilities may receive special education services under the Individuals with Disabilities Education Act (IDEA).  The school must identify eligible students and develop an appropriate plan, called an Individual Education Program (IEP).  Parents and legal guardians are members of the school’s team process to develop the plan.  You have decision-making authority regarding special educational issues only if you are one of the following:

• the child’s biological or adoptive parent,
• the child’s legal guardian,
• the child’s licensed foster parent or
• appointed as the child’s surrogate parent 

If you do have this decision-making authority, the school system must respond to you as if you were the parent.

Children in DHHS custody must have a surrogate parent who is not the DHHS caseworker or any other state employee.  A licensed foster parent is automatically the surrogate parent.  If a child is placed with you by DHHS and you are not a licensed foster parent you must ask to be appointed as the surrogate parent.  You can do this by asking either:

• the District Court to name you as the surrogate parent in the child’s protective case order, or
• the school district’s special education director or the Maine Department of Education to appoint you. 

For additional information and resources about special education, you can contact:

• Maine Parent Federation:  1-800-870-7746 or www.mpf.org
• Southern Maine Parent Awareness (York County):  1-800-564-9696 or www.somepa.org
• Learning Disabilities Association of Maine:  1-877-208-4029 or www.ldame.org
• Disabilities Rights Center:    1-800-452-1948 or www.drcme.org

Legal Guardians and School

Since legal guardians are court-appointed to care for the child, guardians take over all rights and responsibilities relating to the child’s education.  This is true for both temporary and permanent guardianships through Probate Court and for permanency guardianship through District Court.  The child is a resident of the school district where the legal guardian resides. This means the child can enroll in that school district.

The legal guardian has full authority to sign all school forms, permission slips, and sick notes.

Legal guardians have a right to be notified when the child is disciplined, including suspension, and expulsion.  The child has a right to a lawyer and legal due process in all expulsion hearings.

Guardians have the right to access the child’s educational records, as granted by the Federal Education Rights and Privacy Act (FERPA). 

Maine Department Of Health And Human Services (Maine DHHS) and School

Children in DHHS custody are considered residents of the school district in which they are placed by DHHS.  This means that the children can enroll in the school district where they reside with a foster family, an adult relative, or any other adult or treatment center where DHHS placed them.

Each year DHHS signs a blanket form that authorizes all permission slips for the school year.  The caregiver or foster parent then signs each individual slip for the specific activities.

DHHS has the right to be notified if the student is going to be suspended or expelled.  DHHS will then notify the foster parent or caregiver.  If the child is a special education student, the surrogate parent has the right to be notified of any disciplinary issues.

DHHS has full access to educational records, however it does not have any decision making authority as a normal parent would.

Informal Placements and School (with or without Power of Attorney)

If the relative caregiver has the child without a court order, the child is not automatically permitted to attend the school where the caregiver lives, unless the parent lives in the same school district.  See page 24 for more information on residency requirements.

In informal arrangements, the relative caregiver does not have the authority to sign school forms, notes, or permission slips.  Only the child’s parents have the authority to sign.

The caregiver does not have the right to be informed of the child’s discipline, suspension, or expulsion issues.  However, the school will usually notify the adult.  The child is entitled to a lawyer and due process in all expulsion hearings. 

The caregiver does not have the right to access the child’s educational records.