SB138 HD1

Report Title:

Child custody; consent

Description:

Allows a caregiver to give educational consent by affidavit. Subjects caregivers to criminal penalties for making a false statement on an affidavit. (SB138 HD1)

THE SENATE	S.B. NO.	138
TWENTY-FIRST LEGISLATURE, 2001		S.D. 2
STATE OF HAWAII		H.D. 1

A BILL FOR AN ACT

RELATING TO CAREGIVERS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 551, Hawaii Revised Statutes, is amended by adding a new grouping to be appropriately designated and to read as follows:

"CAREGIVER CONSENT

§551- Eligible caregiver. (a) A person shall be eligible to give consent to the enrollment of a minor under section 551- if the person is not less than eighteen-years-of-age, and with regard to the minor that is to be enrolled, is:

(1) The primary caregiver of the minor;

(2) Related to the minor by blood, marriage, or adoption;

(3) Not the legal custodian or guardian of the minor; and

(4) The person with whom the minor resides; provided that if the minor:

(A) Is under age three, the minor shall have resided with the caregiver for six months or more; or

(B) Is age three or older, the minor shall have resided with the caregiver for one year or more.

Caregivers eligible under this subsection shall include persons who are entitled prima facie to an award of custody under section 571-46(2). The superintendent of education may under appropriate circumstances waive the requirements of paragraphs (4)(A) and (4)(B).

(b) For purposes of sections 551- through 551- , "minor" means a person less than eighteen years of age.

§551- Caregiver consent. (a) Notwithstanding any law to the contrary, an eligible caregiver may consent to a minor's enrollment in school if the caregiver:

(1) Possesses a current notarized affidavit of caregiver consent as required under section 551- in which items one through six have been completed; and

(2) Provides proof of compliance with notice requirements under section 551- .

This section shall not apply to the enrollment of minors subject to the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act of 1973.

(b) Caregiver consent under this section shall be superseded by any contrary written decision of a parent or guardian with legal custody of the minor.

(c) A person who relies on the affidavit of caregiver consent shall have no obligation to make further inquiry or investigation as to the contents of the affidavit other than to clarify that the minor resides with the caregiver at the time of the minor's enrollment in school.

(d) No person who relies in good faith on the affidavit of caregiver consent shall be subject to civil or criminal liability or to professional disciplinary action because of the reliance; provided that the person has no actual knowledge of any contrary decision under subsection (b).

§551- Notice of caregiver's intent to enroll a minor in school; proof of notice. (a) Notice of a caregiver's intention to enroll a minor in school under section 551- shall be provided as follows. A copy of the completed caregiver affidavit and a notice explaining the legal parent or guardian's right under sections 551- to deny consent to enrollment, identifying the school in which the minor will be enrolled, and specifying procedures for denying enrollment shall be mailed by certified mail, return receipt requested, to the last known address of the legal parent or guardian of the minor to be enrolled. The caregiver's social security number may be redacted from the copy of the caregiver affidavit provided under this section.

(b) Proof of compliance with this section shall include the return receipt of the notice mailed pursuant to subsection (a). Proof may include a certification by an agency providing assistance to caregivers that the documents required by this section were included in the notice mailed. Proof may also include an affidavit describing the caregiver's attempts in addition to those required under this section, to provide notice to the minor's legal parent or guardian.

§551- Affidavit of caregiver consent. An affidavit of caregiver consent shall be in substantially the following form:

"CAREGIVER AFFIDAVIT

AUTHORIZING ACCESS TO MINOR'S EDUCATIONAL RECORDS AND

CONSENTING TO MINOR'S ENROLLMENT IN EDUCATIONAL SERVICES

STATE OF HAWAII )

) SS.

CITY AND COUNTY OF HONOLULU )

Affiant hereby swears under penalty of perjury that:

(1) The following minor is the subject of this affidavit:

(a) Name: .

(b) Date of birth: .

(2) My relationship to the minor is grandparent, aunt, uncle, or other qualified relative. ("Qualified relative" means a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person whose relationship is denoted by the prefix "grand" or "great", or the spouse of any of the persons specified in this definition, even after the marriage has been terminated by death or dissolution.)

(3) My date of birth is: .

(4) My social security number is: .

(5) I am a resident of the State of Hawaii.

(6) The minor is residing with me and has been residing with me since: .

(7) The parents of the minor are not living in my home and are not available to consent to the minor's enrollment or to provide any other consent that must be obtained from the minor's legal custodian under Department of Education rules and policies.

(8) I am not making this statement for the purpose of enrolling the minor in a school outside of the minor's present school district. I understand that if there is any evidence that this affidavit was created for the sole purpose of enrolling the minor in a school outside of the minor's present school district, this affidavit will immediately become null and void, and if the minor has been enrolled in a new school, the minor will immediately be asked to return to the school in the minor's previous school district.

(9) I will immediately inform the school in writing if the minor stops living with me.

I declare under penalty of perjury under the laws of Hawaii that the foregoing is true and correct.

DATED: Honolulu, Hawaii, .

SIGNED: .

General Notices:

This declaration does not affect the rights of the minor's parents or legal guardian regarding the care, custody, and control of the minor, and does not give the caregiver legal custody of the minor.

The minor's parent or legal custodian may at any time rescind this affidavit by informing the minor's school principal in writing that the minor is attending school under the authority of this affidavit and that this affidavit has been rescinded.

A person who relies on this affidavit shall have no obligation to make any inquiry or investigation into the whereabouts of the parents or legal custodian of the minor, other than to clarify that the minor resides with the caregiver at the time of the minor's enrollment in school.

No person who relies in good faith on this affidavit shall be subject to civil or criminal liability or to professional disciplinary action because of that reliance."

§551- Penalty. A caregiver shall be subject to penalties under part V of chapter 710 for any false statement made in the affidavit under section 551- .

§551- Board of education review. The board of education shall on an annual basis review and if necessary revise the caregiver consent affidavit requirements."

SECTION 2. The superintendent of education may provide for distribution of affidavits by, and develop procedures for proof of notice with, the Na Keiki Law Center.

SECTION 3. This Act shall take effect upon its approval.