Sometimes, parents are not able to take care of their kids. The parents may have died, or be ill, or absent. Often, grandparents, aunts, uncles and others help out. Sometimes, the substitute parents may have problems enrolling the children in school. The school may tell the substitute parents that they have to get a "guardianship" over the children.

The substitute parents may want to have a guardianship in any case. This may be especially true if the relationship will probably last a long time. Another concern may be whether the parent is available to give consent for medical care. If so, a guardianship is less important. An important point may be whether the parent will agree to allow the guardianship. If both parents will not agree to allow the guardianship, a trial might be needed, which could be expensive and time-consuming.

Another consideration is that court action is needed to set up a guardianship. A judge has to sign an order creating the guardianship. The substitute parents may not have the funds to pay a lawyer. Also, as guardians, the substitute parents have to file a report every year with the court. The guardianship goes on until the court ends it. The substitute parents may not want to go to court, especially if the children will likely be returned to the parent fairly soon.

So, what if the substitute parents decide they do not want to get a guardianship?  What if the substitute parents would like a guardianship, but it is going to take some time, either because  the parents will not agree to the guardianship, or no one knows where one or both parents are?  Can the school keep the children out unless there is a guardianship?

The answer is no. Schools cannot keep children out because the substitute parents do not have a guardianship over the children. So, why do schools still sometimes require guardianships?  Usually, the policy has to do with figuring out who is a "resident" of the school district. The law says that public schools are free. No tuition can be charged. (Iowa Code Section 282.6)  However, schools are only free to children who are residents of the school district. Schools are also free to children who attend another district under Iowa's "open enrollment" law. The school does not have to provide a free education to other children. The school could decide to let the non-resident child enroll, but could charge tuition.

School districts have policies that are supposed to help them figure out who is a resident and who is not. These policies sometimes say that a child will be considered a resident if the child's parent or guardian lives in the district. When a substitute parent tries to enroll a child, the school may say that since the parent doesn't live in the district, then the guardian must live there. So, the substitute parent is told to get a guardianship. What they mean is that if they do not get a guardianship, they will have to pay tuition for the child.

Two Arkansas families were in this situation. The parents were not able to care for their children. The kids went to live with an aunt or uncle. The substitute parents were told the kids could not enroll unless they got a guardianship. One of the substitute parents tried to get the mother to agree to a guardianship. The mother wouldn't do it. The substitute parents started a lawsuit in federal court. The case was appealed to the Eighth Circuit Court of Appeals. Iowa is part of the Eighth Circuit, so this case is just as binding in Iowa as in Arkansas. The court ruled that the school could not keep the children out because there was no guardian.

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 kids differently for no good reason, and because it was unfair. There is also an important case decided by the Iowa Supreme Court. It said that having a guardian who lives in the district doesn't mean that the child is a resident of a school district. What matters is whether the child actually lives in the district. The name of this Iowa case is Lakota Consolidated Independent School District v. Buffalo Center/Rake Community Schools, 334 N.W.2d 704 (Iowa 1983).

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, and perhaps go to another city or state. The children probably are suffering, and feeling sad because their parents are not able to care for them. The children have to get used to new people and places. It is usually a good idea to set up a new routine for them right away. If children are kept out of school, they are harmed. There are no "do overs" for childhood. Children need an education and a stable home. If children are kept out of school, the substitute parents may need immediate legal help. Iowa Legal Aid may be able to provide assistance. To find out which office serves your area, call 1-800-532-1275, or look at the website: www.iowalegalaid.org.