How to Resolve Custody Disputes with Parents
"Who has the right to pick up a child when the parents are divorced?"
"Must I follow the wishes of the mother who doesn't want the father to pick up their child?"
Parental custody disputes are a common headache for family child care providers. I addressed these issues and more during a recent webinar “Managing Legal Risks in Early Childhood Programs” sponsored by Early Childhood Investigations Webinars. You can listen to it for free.
Here are some Questions and Answers I prepared after the webinar in response to questions raised during the webinar about custody issues.
Q: “If I've never me the biological parent and he/she is not on the pickup list, how can I give the child to the stranger--even if they are the biological parent?”
A: As a general rule, biological parents have the rights to their children unless a court has restricted their rights. If you know the person who wants to pick up the child is the biological parent, you must give the child to the person, even if the person is not on the pickup list. If you don’t know that the person is the biological parent, then do what is reasonable to try to stop the person from taking the child. This means asking the person to leave, contacting the biological parent to find out if the person can take the child, and calling 911 if the person won’t listen and takes the child.
Q: “You mentioned not putting the child in another area if parent insist on taking the child. What safety precautions should we take, lock the doors?”
A: I assume we are talking about a situation where a person who is not authorized to pick up the child is attempting to take the child. Your primarily responsibility is to keep children safe. It’s reasonable to lock the door and not let the person inside. It’s reasonable to try to talk the person out of taking the child. It’s not reasonable to do something that will escalate the situation and put children, or staff at risk. I don’t recommend locking children in another room. Do not get physical with the person.
Q: “Who is authorized to make changes in the emergency contact if parents are separated but have joint custody?”
A: If they have joint legal custody then you want both parents to agree before changing the emergency contacts. Make them come up with a list that they both agree to, or tell them you will go by who is on the current contact list.
Q: “What if a mother never listed a father on the paperwork because they are not together?”
A: Unless you have a copy of a court order that restricts the rights of the father, the father still has rights to his child, even if he is not living with the mother.
Q: “If a parent is not on a pick up list do they have to prove they are the parent before I would release the child?”
A: If you know the parent is the parent, and you don't have a court document that says the parent has lost the rights to the child, then they can pick up the child, regardless of whether their name is on the pick up list.
Q: “How can you guarantee who is the biological parent if the name is not on the birth certificate?”
A: I’m not sure you can. If you find yourself in a situation where you are not sure if the person trying to pick up the child is entitled to pick up the child, you can always call the police and have them sort it out.
Q: “What about a grandparent? If the grandparent comes to pick up the child but the parent has not told me about it. What is the best thing to do?”
A: Grandparents don’t have the right to pick up children unless the parents give their permission or the grandparents have legal rights to the child. In this situation, I’d tell the grandparent to wait until you contact the parent to find out if it’s okay for them to pick up. If the grandparent insists on taking the child, call 911.
Q: “What happens if the other parent makes a fake note and you can’t get a hold of the parent to verify the note?”
A: You aren’t liable if a parent gives you a permission note and you don’t know the note has been faked.
Q: “Is a copy of a custody decree sufficient or should it be an official court document with a raised seal?”
A: I think a copy is fine.
Q: “Can the non-custodial parent with visitation pick-up privileges send anyone else to pick up the child?”
A: Let’s say, according to the custody order, the father is authorized to pick up on Monday and Wednesday and mother is authorized to pick up on Tuesday, Thursday and Friday. I think the best policy is to allow either parent to authorize other people to pick up on their days, since they are responsible for those days. The other parent shouldn’t be able to veto this.
Q: “Are we able to photocopy the person's license for id verification?”
A: Yes, I think it’s a good idea.
Q: “What if the father’s name is on the birth certificate?”
A: You should then assume he has legal rights to the child unless the mother produces a court document that says he doesn’t.
Q: “Both parents register a child, they are both legal guardians. They later separate and the mother, all of the sudden gets mad at dad and tells us he’s not allowed to pick up child. What do we do?”
A: He gets to pick up the child because he has legal rights to the child. Only a court can take away the legal rights of a person.
Q: When parents have a parenting time schedule and mom tries to pick up on dad's time, do I have to give child to mom?”
A: If this parenting schedule was set by a court order, then the mother does not have a right to the child during the father’s time. If this is an agreement made between the parents, without any court involved, then either parent can pick up whenever they want, despite their schedule.
Q: “If a grandparent has a Power of Attorney for the children, and the mother comes pick up the children, what is my responsibility?”
A: Power of Attorney probably has nothing to do with physical custody. Therefore, the mother can pick up the child. If you are not clear whether or not the document given by the grandparent does restrict the right of the mother to pick up the child, you should call the police and have them resolve the matter.
Q: “What about families who do not list a second parent on the enrollment paperwork (say they are a single parent) and then someone shows up stating they are the father of the child?”
A: Since you do not know that the person showing up is the father, you should do what is reasonable to prevent him from taking the child. If the father won’t leave without the child, call 911.
Q: “What can I expect when being called as a witness to a father's actions?”
A: If either parent is calling you as a witness you should only respond to questions you are asked directly. Don’t offer your opinion unless directed to do so by the judge. Stick to the facts that you saw or heard. Don’t show bias towards one parent or the other.
Q: “How does the biological parent prove that they are the parent if they aren't on the pickup list?”
A: A birth certificate. Or maybe they can produce some other court document that declares they are the parent.
Q: “Regarding custody situations, how do you recommend handling same sex parents?”
A: Ask to see court documents as to who has rights to the child. Follow whatever the court document says. If the parents are legally married, treat them the same way as any other parent.
Q: “In the case of a mutual custody but the parents are separated, no court order just a verbal agreement. If the mother chooses to remove the child from the program, does the father need to be notified?”
A: No. The answer would be the same if the parents were happily married and living together.
Q: “In our state we ask for a photo ID to verify. Is that legal?”
A: Yes, you can ask for a photo ID before giving the child to the parent or any authorized person on the pick up list.
Q: “Do step-parents have the same rights as the biological parents?”
A: No. State laws can vary on this issue, but your program should ask for clarification from the biological parent as to whether they want the step-parent to have equal rights to the child.
Q: “This happened to me this morning. A single mother who never been married to the father tells me do not let her father pick her up. What do I do?”
A: I assume you know who the father is. The answer can vary depending on your state. In Minnesota the mother has all the rights to the child if the parents were never married. Unless you know your state law, I would honor the wishes of the mother and not let the father pick up the child. If the father objects, ask the father to produce something in writing from a court that says he can pick up. If he tries to argue about this and insists on taking the child, call 911.
Q: “Should you have both parents complete a enrollment packet when there is shared custody and parents pay separately?”
A: Yes. This is so you can enforce the contract against either parent.
Q: “What if the mother is getting a restraining order on the day that the father tries to pick up? Can we refuse to have the child picked up?”
A: Not until you get a copy of the restraining order. You don’t want to rely on the word of one parent against the other.
Q: “If a parent is NOT listed on the birth certificate does the other parent HAVE to have court ordered papers or can they strictly state they are not allowed to pick up?”
A: If you know who the father is, you should assume he has the rights to the child, even if his name is not on the birth certificate.
Q: “What if you don’t know the father and he has been gone for years, no court orders, never married?”
A: Take reasonable steps to prevent him from taking the child. Call the mother. If he takes the child, call 911.
Q: “If one parent has physical custody of child and the other is allowed supervised visitation as per a court order can I honor the custodial parent's request to deny the non-custodial parent access to the child while at my program? Isn't it a liability for me if I do allow the non-custodial parent access to the child since the court order only allows "supervised" visitation?”
A: You must follow what the court order says. If it says the non-custodial parent may only see the child while “supervised” then you should not allow this parent to see the child in your program without supervision. If you are in violation of a court order you can be sued by the parent. If you are not clear what the court order means, make a decision based on what you believe is in the best interests of the child. If a parent objects, contact the police to sort it out.
Tom Copeland - www.tomcopelandblog.com
Image credit: https://indianexpress.com/article/parenting/health-fitness/parents-fights-effect-child-mental-health-and-behaviour-5384029/
