Can the School Make Me Get a Guardianship in Order to Enroll Children I Am Taking Care Of?

Sometimes, parents are unable to take care of their kids. The parents may have died, or be ill or absent. When parents can't take care of their kids, it often means the family is thrown into crisis. The children may have to leave their home; they must get used to new people and places; they may have to relocate to new communities. Often, grandparents, aunts, uncles and others help by providing a home for the children temporarily or long term. Sometimes, these substitute parents may have problems enrolling the children in school. The school may tell the substitute parents that they must get a "guardianship" over the children before they can enroll them.

When is a guardianship a good idea?

If it looks like you are going to be caring for the children for a long time, it may be more important to get a guardianship.  Also, if neither parent is available to sign documents or give consent for medical care, there will likely be a stronger need for a guardianship. 

Is there any down-side to getting a guardianship?

Setting up a guardianship requires court action. 

• The substitute parents will likely need a lawyer, and they may not have the funds to pay a lawyer.  If either or both parents will not agree, a trial will likely be needed.
• A trial can be more expensive and time-consuming.  Sometimes, the location of one or both parents is unknown, making it hard to notify them about the guardianship case. 
• As guardians, the substitute parents must file a report every year with the court. A guardianship continues until the court ends it.
• This means a guardianship can also be very difficult and time consuming to end if a parent and a guardian have difficulty communicating and getting along with each other.

Can the school force me to become a guardian before I enroll the children?
The answer is no. Schools cannot keep children out because the substitute parents do not have a guardianship. It does not matter whether the child is living with a parent or legal guardian.

The McKinney Vento Homeless Assistance Act is a federal law that was enacted to protect the educational rights of children who may be experiencing homelessness.

• The Act requires states to take steps to make sure that children and youth are not delayed or prevented from enrolling in school. 42 U.S.C. §11432(g)(1)(H).
• Iowa has the same requirements. IAC 281-33.7(1).
• The McKinney Vento Homeless Assistance Act does not require a substitute parent to establish a guardianship before a child experiencing homelessness can be enrolled in school.

Where can I enroll the children?

The law defines a child who does not live with a parent or legal guardian as an “unaccompanied youth.” The law allows a child in this situation to attend school in either the district where the child is actually living, or the district where the child was last enrolled, whichever is better for the child.

Are there other laws that protect children living with a substitute parent?

Before the McKinney Act was passed, there was an important case about the right to enroll in school.  In that case, two Arkansas families were not allowed to enroll children in school. 

• The substitute parents were told by the school that they could not enroll the children unless they obtained a guardianship. One of the substitute parents tried to get the mother to agree to a guardianship but the mother refused. The substitute parents filed a lawsuit in federal court. The case was appealed to the Eighth Circuit Court of Appeals.  The court ruled that the school’s policy of not allowing children to enroll unless they have a parent or legal guardian living in the district was unlawful. The name of this case is Horton v. Marshall Public Schools. The legal citation for the case is 769 F.2d 1323 (8th Cir. 1985). The court said that the school's policy violated the Constitution of the United States because it treated these children differently for no good reason and it was unfair. Iowa is part of the Eighth Circuit, so this case is just as binding in Iowa as in Arkansas.

Are there any alternatives to a guardianship?

If either parent is willing to sign a power of attorney, that may be an alternative to guardianship. 

• The power of attorney gives someone else the power to act for the parent.  It does not take away any rights from the parent. 
• A power of attorney may be useful in situations where the parent’s location is known, the parent is competent to sign a legal document, and the parent is willing to cooperate. 
• Only one parent is needed to sign a power of attorney.  

If children I am caring for are not allowed to enroll, where can I get help?

If children are kept out of school, the substitute parents may need immediate legal help to get them enrolled as soon as possible. Iowa Legal Aid may be able to provide assistance. 

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Iowa Legal Aid provides help to low-income Iowans. 

To apply for help from Iowa Legal Aid:

• Call 800-532-1275. 
• Iowans age 60 and over, call 800-992-8161.
• Apply online at iowalegalaid.org

If Iowa Legal Aid cannot help, look for an attorney on “Find A Lawyer”   A private attorney there can talk with you for a fee of $25 for 30 minutes of legal advice.

*As you read this information, remember this article is not a substitute for legal advice.