Dealing with DHR in Child Custody: Can DHR Talk to my Child at School…?

Dealing with DHR in Child Custody: Can DHR Talk to my Child at School…?

Disclaimer: The information contained herein is general in nature and may not apply to your family’s specific situation. To be informed as possible, you will need to schedule a consultation with a Child Custody attorney. 

This question comes up a lot and it is extremely dependent upon the exact circumstances of your particular situation. Here are 3 general principles, though, that will inform this process:

  1. The concept of in loco parentis

Black’s Law Dictionary 803 (8th ed.2004) defines the term “in loco parentis” as “[o]f, relating to, or acting as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent.” This Court has delineated two clear situations in which a person or entity stands in loco parentis. First, a teacher “ ‘is regarded as standing in loco parentis ’ ” Smith v. Smith, 922 So. 2d 94, 98 (Ala. 2005)

So what does it mean that a teacher stands in loco parentis? It may mean that the teacher or a school administrator may exercise the same discretion you, as a parent, might when deciding whether to allow DHR to speak to a child.*

(* Notice that I said “decide.” Though practical experience shows that some school personnel believe they “must” allow DHR or police to talk to a child, we vigorously contend that the school can refuse such access.

In fact, DHR’s own administrative regulations contemplate a situation in which a school refuses to allow DHR to speak with a child. To wit, in §660-5-34-.05, Ala. Admin. Code. If access to a child by DHR is refused by a school, DHR is allowed to seek a court order to meet with the child. IMO, the discretion afforded a school in loco parentis is just that. It’s optional.)

  1. Private Schools and facilities are different.

In the case of Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), which dealt with social workers’ interview with a child over the objection of both parents and the school, the Court of Appeals ruled, among other things, that (1) a private school is allowed to bring a 4th amendment challenge for illegal search of its premises, (2) that social workers’ interview with a child constituted a “search” falling under the purview of the 4th amendment, (3) taking the child to the location of the social workers’ interview constituted a “seizure” under the 4th amendment, and (4) such a search and seizure carried out on private property is presumptively unreasonable unless there’s an emergency (what we call probable cause of exigent circumstances)…

  1. All bets are off in an emergency.

Unfortunately, there are certainly circumstances in which DHR will and should access a child regardless of and without heed to permission from anyone, parent, school or otherwise. That’s not what we discussed above in ¶¶1 & 2. Those paragraphs, above, deal with DHR’s “investigation” trying to get information they need that they don’t already have or what could also be referred to as a “fishing expedition.” 

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So what are we to do if we don’t want DHR, or any other government agency for that matter, talking to our kids at school…?

  1. Get something in writing to the school. 

Send them a formulaic letter requesting that anyone not associated with the school or school district not be allowed to speak with your child without (a) notifying you and (b) confirming your permission to do so. 

It needs to be in writing so there will be something in the student’s file. It needs to be addressed to an administrator, not a teacher. Teachers are underpaid, overworked and they need to focus their limited time and energy on teaching not dealing with administrative matters like this. 

  1. If you are actively being investigated by DHR, you need to lawyer up…now!

Remember DHR’s administrative code from above? DHR is required by that same section to notify anyone allegedly responsible for abuse or neglect in writing within 5 days of a report. 

If you have received such notice, you are now starring in your own true crime Netflix documentary if you meet with, speak with and comply with the investigation of DHR without the assistance of a Child Custody lawyer. How does that tend to go in those documentaries? (We’ve written more on that subject in other articles in this series.)

Your lawyer can follow up with the school if disclosure, at that point, regarding the existence of  investigation is the right move. If you have a good relationship with your child’s school, and you should, they can actually be a huge asset in this or in any Child Custody case. 

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Peruse DHR’s Admin Code if you haven’t. You’ll see that they, according to their regulations, shall try to meet with the child. DHR does not have discretion, but YOU do, and we think your school does, too. A Child Custody lawyer will be glad to explain it to them or their school board attorney and have done so on a number of occasions. 

So, can DHR talk to your child at school? Yes. Without your permission? Possibly. Without the school’s permission? In an emergency, certainly. Bottom line…it’s complicated, but you don’t have to go through this alone. 

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This article contains general information and should not be construed as legal advice for you and or your unique situation. If you would like to speak more about how you, as a Committed Parent or Caring Relative, can be more effective in your Child Custody case, please visit www.ThinkFoxtrot.com/public_calendars/ to schedule your initial consultation at one of our offices. ~SW, Foxtrot