Grandparents, Aunties, and Uncles all enjoy that in-between family space that allows them to spoil children and yet take no responsibility for them. But what of stepparents? Are they legally responsible for stepchildren? Can they exert any power over the little rascals? And what if a stepparent wants to take a peek at Junior’s school records or communicate about their progress on Seesaw?

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What is FERPA?

The Federal Educational Rights and Privacy Act (FERPA) is a federal law enacted in 1974 that protects the privacy of students’ educational records. Under the 50-year-old law, parents and legal guardians have access to educational records of their minor kids, but other folks do not.

FERPA is a useful tool for safeguarding information about your kids’ academic performance.

A school cannot sell Little Lyle’s bad report card to tutoring companies or private online schools. Sweet Sally’s class rank is not available to school photographers and sellers of prom dresses. Athletic scouts cannot wheedle performance data from high school coaches.

FERPA is why many teachers do not display graded work on classroom walls. Teachers usually remove identifying information from any displayed work. While very few parents of A+ students complain about seeing their kids’ stellar work on a wall, parents of mediocre performers have every reason and right to voice their displeasure

FERPA is more powerful than just hiding test scores and so-called “permanent records” from prying eyes. When students turn 18, the privacy rights pass to them, so parents do not have a legal right to inquire about senior grades, class rank, or college performance.

FERPA applies to any institution receiving federal monies, however indirectly. It applies from early childhood through postgraduate school, too.

FERPA Rights

Parents worried about their minor child’s public school and its respect for student privacy can easily test the strength of FERPA. A parent can casually ask a school counselor, office secretary, or teacher for information about another parent’s child.

Almost without exception anywhere in federally funded institutions, the counselor, secretary and teacher will gently rebuff such a request, since it is illegal.

But what about a stepparent? What if a stepparent wants to peek at a stepchild’s records? Or wants to be contacted by the school regarding behavior and grades? Or is curious about cafeteria charges?

Stepparents can run into the immovable object that is FERPA.

Virginia Laws for Stepparent Rights

People who “do their own research” on the internet will find an answer to this question blindingly fast, since the answer is so short:

  • Virginia has no laws giving rights to stepparents

A stepparent appears in the Code of Virginia only by inference, as a “person with a legitimate interest.” Kinda harsh, we know, but at least stepparents get that much. And, don’t forget, stepparents are legally not responsible for anything the kid does. Broken window? Not your problem. Failing grades? Not your issue.

Stepparents can be persons with legitimate interests with regard to one very special situation: child custody. A Virginia court may award child custody to such a person with a legitimate interest if such a decision is supported by “clear and convincing evidence that the best interest of the child would be served thereby…”

We enjoy a good “thereby” as much as the next person but getting tagged as a “person with a legitimate interest” just does not have the same legal clout as, say, being a birth parent or an adoptive parent.

And as far as FERPA goes, it has almost no clout at all.

In Loco Parentis

School teachers and school administrators operate under a legal protection called in loco parentis, which is Latin for “in the place of a parent.” School personnel are legally assumed to put the needs of any child first, as if they were the child’s parent. This relieves them of liabilities for minor issues like a playground mishap.

Under this legal concept of in loco parentis and in some rare instances grandparents, stepparents, and other caregivers can be considered a parent for FERPA’s purposes. The guideline is if “the stepparent is present on a day-to-day basis with the natural parent and child and the other parent is absent from that home,” according to the U.S. Department of Education.

If the other parent (a birth parent or adoptive parent) is on hand, the stepparent has no legal sway.

What are the Virginia Laws About Adoptive Parents?

To regain some semblance of control over your stepchild’s education, adopt the stepchild. While most of Virginia’s family laws reside in the Code’s Title 20, adoption is way, way down the list, in Title 63.2 (tucked between Title 62.1, Waters of the State, Ports and Harbors and Title 64.2, Wills, Trusts, and Fiduciaries; you can tell they were running out of categories).

Nestled nicely within Subtitle III is Section 12, Adoption.

And cozily cuddled up within that is the powerful, the audacious, the nearly omnipotent § 63.2-1215. Legal effects of adoption.

You doubt our blustering adjectives? Take a look:

  • The birth parents, and the parents by previous adoption, if any, other than any such parent who is the husband or wife of one of the petitioners, shall, by final order of adoption, be divested of all legal rights and obligations in respect to the child including the right to petition any court for visitation with the child.

Boom! Nobody nohow can move the adopting parent aside, and nobody nohow can take away the adopting parent’s rights (and obligations). That means FERPA gladly reveals educational records to adoptive parents but ignores stepparents.

This matters in day-to-day issues like educational programming, athletics, extracurricular activities, and technology.

Stepparent Rights to School Apps and Records

Many public brick-and-mortar schools offer privately created programs for online learning. These can be used for homework assignments, enrichment, inclement weather days, and remote learning. School apps such as Seesaw, Quizlet, Khan Academy Kids, Coursera and others all allow your minor child to sign on in and out of school. Safeguards are in place to prevent unwelcome and inappropriate content from seeping into these wholesome, challenging sites.

Yet what happens when a stepparent has access to these electronic records? What happens when a birth parent or adoptive parent does not want a stepparent to have such access?

To review, a stepparent who shares parenting responsibilities with a birth parent or adoptive parent has no legal rights to the child’s educational records. Those educational records can be in many forms:

  • Biometric data
  • Directory information
  • Personally identifiable information
  • Handwritten notes
  • Video or audio recordings
  • Computer media
  • Film
  • Microfilm or microfiche

That’s a very broad list. Just about the only records excluded are personal information teachers may record for their own use, such as memory aids, that are not shared with others.

What if Someone Has Access to School Records Who Shouldn’t?

Public school employees are indemnified from issues with these private school apps under the protection of in loco parentis, and the apps shield themselves from liability by requiring parental approval of any app that collects student information.

When Little Lyle or Sweet Sally sign up for, say, Seesaw, parents are part of the process. Worried parents can find consolation in Seesaw’s Privacy Center page, too.

The birth parent or adoptive parent’s rights to access the educational records always outrank an eager stepparent’s curiosity. Either school personnel or the app’s customer service agents can and will remove the stepparent’s access. The next time the stepparent seeks to poke around in Seesaw is when that stepparent finds out such information is, as they say, nunya bizness.

Why You Cannot Beat FERPA

Because of the U.S. Constitution’s Supremacy Clause, no amount of legal maneuvering will help a Virginia stepparent gain access to a minor child’s educational records. In the event a stepparent thinks a Virginia law allows such access, the federal law takes precedence. In other words, you cannot beat FERPA.

If you are a Virginia stepparent seeking better control or access to educational information about a child in your life, adoption is the absolute surest way to get it. If you’re a parent seeking to limit or halt the access of a stepparent, FERPA is your answer. For all your questions involving parental rights, custody, visitation, and more, contact an attorney familiar with family law, like the attorneys at The Firm For Men. Contact us today or telephone us at (757) 383-9184 to schedule an appointment.