Monday, June 10, 2013

Accessing Your Child’s Records after Divorce: What You Should Know

Q:       I am divorced and my ex-wife is listed as the “residential parent for school placement purposes” in our parenting plan.  My son’s school will not allow me to see his school records since my ex-wife’s name is the only name on the records. Can the school refuse to let me see my son’s records?
A:        No. Unless the school has been presented with a court order that says you have no right to access to your child’s school records, the school is required by law to give both you and your wife the exact same access to your child’s records, even if you are not your son’s residential parent. Assuming your parenting plan has no such restriction, the school was wrong in not allowing you access to your son’s school records.

Q:       Does this rule apply to both public and private schools?
A:        Yes. Both public and non-public schools must comply with Ohio’s “records access law.” Only a court can restrict a parent’s right of access to most records regarding a child, including school records. In order to restrict the access, the court must make a specific finding as to why a parent’s right of access should be limited and the circumstances under which the parent can obtain access. For example, if the court decides it is not in the child’s best interests for the non-residential parent to have access to school guidance counseling records, then the court would have to specifically state its reasons for that decision in its court order. In such a case, the court order would specifically deny the non-residential parent access to school guidance counseling records, but would still allow the non-residential parent access to the child’s grades or other records.   Only with a copy of that court order can the school legally restrict your access to any of your child’s records.

Q:       Does this rule only apply to “shared parenting” plans, or does it also apply to any kind of parenting arrangement when parents are divorced?
A:        This applies to any kind of parenting arrangement, even if the non-residential parent sees his or her child on an extremely limited basis.

Q:       What kinds of records does the “right of access” cover?
A:        There is a very long list of the kinds of records the “right of access” covers. Except when a court specifically denies a parent access to particular records through a court order, a parent has access to “any record, document, file or other material containing information directly related to a child.”

Q:       My ex-wife always takes our children to the doctor. When I called the doctor’s office for information about a medicine my son is taking, the receptionist said my ex-wife would have to sign a release of information form before she could share any information from my son’s record. Can the receptionist do that?
A:        No. Your “right of access” to your child’s records applies to a long list of public and private businesses that are obligated to give you access, including doctor’s offices,  schools, child care facilities (day care centers), hospitals, doctor’s offices, dentist’s offices, psychologists, school counselors, and most state agencies. In the statute, the list is much longer.
Q:       Might a doctor’s office violate the HIPAA privacy laws by giving my ex-wife access to our child’s medical records?
A:        Generally, no.  Although there are limited exceptions, a doctor’s office does not violate HIPAA by giving a parent access to his or her child’s medical records, since a minor child’s “personal representative” is allowed to have access. If a doctor’s office does claim that it cannot release records because of HIPAA, then that office should be prepared to establish that one of those limited exceptions applies. In such a case, you may wish to involve your legal counsel to help you obtain the records you seek.             

 This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Columbus attorney Bobbie Corley O’Keefe of Carlile Patchen & Murphy LLP. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.    

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