Request By:
Dr. Vickie P. Basham
Superintendent
Hancock County Public Schools
P.O. Box 159
Hawesville, Kentucky 42348
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter to this office you requested an opinion on whether a noncustodial parent of a child in elementary school has the right to review educational records of her daughter. The custodial parent has stated that he does not believe the noncustodial parent has a right to inspect the documents based on KRS 403.330.
In our view KRS 403.330 does not ban a noncustodial parent from inspecting his or her child's educational records.
The statute in issue, KRS 403.330, provides in pertinent part:
(1) Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child's upbringing, including his education, health care, and religious training, unless the court after hearing, finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian's authority, the child's physical health would be endangered or his emotional development significantly impaired.
While the language of KRS 403.330(1) confers upon the custodial parent, absent a contrary agreement or court order, the right to determine a child's upbringing, including education, there is no language specifically extinguishing the general right of a noncustodial parent to review a child's educational records. Absent express statutory language banning a noncustodial parent from reviewing a child's educational records, or an agreement or a court order establishing such ban, we believe a noncustodial parent has the same entitlement as a custodial parent to review a child's educational records.
Additionally, we find no innate conflict between a custodial parent's determination of a child's education, and review by a noncustodial parent of the child's educational records, such that a ban on a noncustodial parent's inspection of his or her child's educational records would be viewed as integral to the custodial parent's power to determine a child's education.
For these reasons, it is our opinion that KRS 403.330 does not ban a noncustodial parent from inspection of his or her child's educational records. While that statute also does not require you to allow a noncustodial parent to inspect his or her child's educational records, you should note the requirements of a federal statute entitled the Family Educational Rights and Privacy Act of 1974 ("FERPA") (20 U.S.C. § 1232g) and its implementing regulations (34 C.F.R. Part 99).
FERPA requires an educational institution to allow parents of students to inspect and review the education records of their children if the educational institution wishes to receive federal funds, subject to certain exceptions that do not apply here. FERPA's implementing regulations require that an educational institution give either parent the right to inspect and review the child's education records; the only exception to this requirement is if the institution "has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights." 34 C.F.R. § 99.4, a copy of which is attached.
This exception does not apply in the situation that you have described to us, because, as we discussed above, KRS 403.330 does not specifically revoke a noncustodial parent's rights to inspect these records. In addition, no evidence has been presented that there is a court order or legally binding document that revokes the noncustodial parent's rights to inspect these records. Accordingly, if your school system receives federal funds and wishes to continue to receive such funds, you are required, by federal law and regulation, to allow the noncustodial parent the right to inspect the educational records of his or her child.
In sum, it is our opinion that the language of KRS 403.330 does not ban a noncustodial parent from inspection of his or her child's educational records. Therefore, absent a court order or other legally binding document prohibiting a noncustodial parent from inspection of his or her child's educational records, you are free to allow such inspection; indeed if you wish to receive federal funds you are required to allow such inspection.