We were fortunate to have Tom Copeland present another information-packed and fast-paced webinar, Managing Legal Risks in Early Childhood Programs on January 20, 2016.
Many of the participants had questions that we were unable to ask Tom. He was kind enough to answer them and they are posted below. Here is a link to the recording: Managing Legal Risks in Early Childhood Programs
Disclaimer: In the responses below, Tom Copeland does not render legal, tax, or other professional advice. If you require this type of assistance please consult a professional to represent you.
For further information see Tom’s book, Managing Legal Risks in Early Childhood Programs (for child care centers) and Family Child Care Legal & Insurance Guide (for family child care providers), both published by Redleaf Press .
Tom is happy to answer additional questions about the business of child care at [email protected]. He does not charge a fee to answer questions
Privacy
Q.1. “I want to know about whether or not to use the social networks like Facebook or should my staff and I stay completely away from using them.”
Tom Copeland: Social media, including Facebook, can be a valuable tool in promoting your program to prospective parents and sharing information with current parents. You need to be very careful about not posting any information about parents or children without the permission of the parents. You need to educate staff about not sharing any information about clients without your permission. They should not take pictures of children without your permission.
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Q.2. “What about parents who take pictures and post them on Facebook. I am liable for their actions?”
Tom Copeland: You should establish a policy about when parents can take pictures of their child and other children while in your program. In general, you shouldn’t permit this unless the other parents agree to have their child’s picture taken. If a parent who takes a picture does have the permission of the other parents then you are not liable for that parent posting the picture on Facebook. If the parent who takes a picture does not have the permission of the other parent, in violation of your program’s privacy policy, and your program knew about it and did nothing, then it’s possible you could be held liable for not protecting the parent’s privacy.
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Q.3. “Can you speak to the use of Dojo app that schools use with direct access to parents regarding their children?”
Tom Copeland: These apps allow child care programs to share information about the children electronically with parents. If you use such apps you want to get written parent permission (both parents if they are around) and you want to set a policy about who in your program will have access to this information. I would discuss with parents any privacy concerns they might have before implementing such apps.
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Q.4. “We have family events and a parent takes a picture of their child at the event and post it on Facebook and another child is in the background. Are we liable?”
Tom Copeland: I would recommend having a privacy policy that asks parents for permission to have pictures of their child taken at such family events by other parents. It may be very difficult to exclude a child from photos if a parent doesn’t give permission. As long as parents know ahead of time that this is an event where pictures will be allowed to be taken, your program won’t be held liable.
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Q.5. “Can you also make a distinction between children’s pictures being posted on a center’s Facebook/social media page versus and employee’s personal Facebook page? The center’s release would not cover an employee’s page.”
Tom Copeland: I recommend having a separate privacy policy for staff. I would recommend not allowing staff to have a cell phone while with children. Your policy should say that staff are not permitted to take pictures of children without the director’s and parents’ permission. This includes posting any pictures of children on an employee’s personal Facebook page.
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Q.6. “Can you share family information with community partnerships? For instance our child care facility is in partnership with community services. Same company different entity.”
Tom Copeland: I would not recommend sharing information about clients with anyone without the written permission of parents.
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Q.7. “We have a statement in our handbook that information may be shared with other programs we work with: programs include QRIS, Kindergarten, co-ops, behavior support program, early intervention. Is this adequate?”
Tom Copeland: Yes, if your handbook is clear about to whom you are sharing information with. Because privacy is a growing concern for parents, I would recommend creating a specific privacy policy that parents sign to reinforce this message. Parents can sign the page in your handbook with such a privacy policy.
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Q.8. “I took a picture today of our preschool activities. I didn’t get any of the children in the picture, only the arms. Their sleeves were showing but they were pulled up. Is that compliant?”
Tom Copeland: The issue with privacy is to satisfy parent expectations about confidentiality. I have heard about parents who were unhappy when a picture of their child was posted on Facebook even though the picture showed the back of the child. The parent complained because she could identify her child, even if no one else could. Because of this, I would be extremely cautious, even if you are only showing arms. Get written permission from parents to protect yourself.
Rates
Q.9. “Can you put your rates on promotional flyers?”
Tom Copeland: Yes! Child care programs can share their rates publicly. This includes posting them on flyers, on Craigslist, your website, and Facebook page.
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Q.10. “Is it ok for center staff to discuss rates with other programs?”
Tom Copeland: No, if the people talking about rates know they work for different programs. It is illegal for competitors to discuss rates with each other.
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Q.11. “Can you send someone else (a teacher, a secret shopper) in to tour other centers in your area to get information about their program; including tuition?”
Tom Copeland: Yes, as long as the other program doesn’t know that the person doing the price comparison is from a competitor. It’s not illegal for people from two different child care programs to discuss rates as long as one of them doesn’t know the other person is a competitor.
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Q.12. “What if my center does a Tuition Rate Comparison for the prospective parents. Is it okay to call around for others rates?”
Tom Copeland:. Only if the other centers do not know that the person collecting tuition information is a competitor.
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Q.13. “What if the child care resource and referral agency does a salary or tuition survey?”
Tom Copeland:. Since the CCR&R agency is not a competitor, it is legal for them to do rate or salary surveys. A child care program can ask CCR&R for any information they collected.
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Q.14. “I belong to an agency and they dictate what I can charge, is this legal?”
Tom Copeland: Yes, if that’s in the contract you signed with them. It is possible that you would be considered their employer if they are setting your rates. As an employer they then should be withholding Social Security tax, paying federal and state unemployment tax and purchasing workers compensation insurance to protect you. The issue of whether or not you are an employee or an independent contractor is a complicated one that is not solely dependent upon who sets the rates.
Transportation Issues
Q.15. “I cannot see cars when parents/caregivers pick-up, so unless they state they don’t have a car seat, how am I supposed to be responsible if there is no car seat (if they don’t say anything)?”
Tom Copeland: You want to have a transportation policy that says parents are supposed to have appropriate car seats. If you don’t see them picking up without a car seat, you are not liable.
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Q.16. “Is my program at risk if a parent that smells of marijuana comes to pick up her child? They could have been around someone and the smell is on them from that?”
Tom Copeland: Your primary responsibility is to keep children safe. If you smell marijuana on a parent then you should conclude that it’s not safe for a child to be in the car with that parent. You don’t know if the parent smoked or not, but that doesn’t matter. Since the child is potentially at risk, you need to address this. Your transportation policy should say that you will act if you think the child is at risk, regardless of what the parent might say. Tell the parent that if they show up again smelling of marijuana you will ask that they not transport the child and that you will call a back up person to take the child home. If the parent insists on taking the child, call 911.
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Q.17. “Is there any liability if a child shows up smelling of alcohol or marijuana and drops off?”
Tom Copeland: Wow. This child is at risk and as a mandated reporter you need to contact child protection. Obviously, you want to speak to the parents about this first. But, I would tell them that if it happens again you will report the parent. Failure to take these steps could cause you to lose your license.
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Q.18. “What happens if you do not smell or notice impairment however parent IS impaired and crashes after pickup?”
Tom Copeland: You are not responsible in this situation because you had no knowledge that the child was at risk.
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Q.19. “What liability does my program have if we take children on the city bus?”
Tom Copeland:If there is an accident on the bus, the bus company’s vehicle insurance will cover your children. Once the children get off the bus, you want your own business liability insurance to cover the children.
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Q.20. “We put a child on a van to go to EEC and we have to install the car seat into the van!??”
Tom Copeland: As a general rule, child care providers and centers do not want to be involved in installing car seats or putting children into car seats of parents’ vehicles. This is because it increases the risk to your program if the child is injured as the result of a faulty installation of the car seat by you or your staff. If you are using the van of another child care agency (EEC) and must install the car seats, then your program does take on some additional risk if there is an accident. If you can convince the van owner/driver to install the car seats, this reduces your risk. If not, then you/your staff need to have the proper training to properly install the car seats.
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Q.21. ”What if our staff member is a certified car seat tech? Would that negate the liability?”
Tom Copeland: Maybe. The fact that your staff is trained to install car seats means there is less likelihood that they will install it improperly. But, because they have this training they have a higher duty of care to do it correctly. So, if they install it improperly, your center is liable if it leads to an accident.
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Q.22. “I transport kids in my car so would I need more liability coverage?”
Tom Copeland: Probably yes. All child care providers who use their own vehicles should contact their car insurance agent to make sure they are covered when transporting children. Get it in writing that you are covered. You may have to purchase commercial car insurance. Some companies will not insure you, so you may have to shop around for a different policy.
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Q.23. “Why would you want to include a transportation fee in the regular fee and not have it separate?”
Tom Copeland: In general, you do not want to charge parents to transport their children in your vehicle. This is because you may have to get a commercial drivers license and you may be in violation of local laws dealing with vehicles for hire. If you include the fee as part of your regular rate then you can avoid these problems. You also want to check with your car insurance agent to make sure you are covered when you do transport children.
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Q.24. “We use the county transit to take the children to the library and there is a fee of a $1 round trip. I ask the parents to pay that dollar. Am I ok on this?”
Tom Copeland: You are fine. Since you are using public transportation this is different that using your own vehicle and there is no additional risk to your program.
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Q.25. “Before transporting day care children, doesn’t a family child care provider need a special insurance policy?”
Tom Copeland: Probably the biggest financial risk you can take is to get into a car with daycare children. The risks of bodily injury, property damage and lawsuits can be very high. So, check with your car insurance agent to make sure you are adequately covered and get it in writing. Purchase business liability insurance to protect you against parent lawsuits.
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Q.26. “What if a parent leaves other small children in the running car while she comes into the child care to pick up another child?”
Tom Copeland: You face a risk of a lawsuit if a child is injured while on your property. This may also be a situation where as a mandated reporter you must report this to child protection. So, tell the parent they cannot leave children in their car while it is running.
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Q.27. “What if a staff member babysits for a center child and takes him/her in their car from the center?”
Tom Copeland: There are two issues here. First, the staff member should check with her car insurance agent to make sure her insurance will cover her in this situation. She may need to get commercial car insurance. The center should demand to see a copy of her insurance policy that covers this situation. Second, your center does take on some additional risk by allowing the staff to use her car and to care for children in the staff person’s home. The center can get a “hired and non-owned” insurance policy to protect themselves from a lawsuit by the parent if the child is injured in the car. The center also takes on more risk when the staff babysits a child enrolled in the center. This is because the parent could sue the center if the child is injured while in the home of the staff person. I would recommend not allowing staff to babysit. If you do so, get the parent and staff to sign a “hold harmless” permission form that states the center is not responsible if a child is injured. See a sample form in my book Managing Legal Risks in Early Childhood Programs.
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Q.28. “I had a dad drop off his daughter, and in our greeting it came up that she was not in a car seat but in her brother’s lap on their way to my daycare. This has happened a couple times now (they live 2 blocks away). I cannot physically SEE inside his truck from my house. Am I responsible for anything?”
Tom Copeland: Probably yes, because you know that it has happened in the past and is likely continuing to occur. You need to tell the father he must use a car seat and if he doesn’t, and you see it, you will call 911. If the father won’t agree to always use a car seat, you should terminate immediately. You can’t take the risk of a lawsuit or losing your license over this.
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Q.29. “Is my center liable when parents, who pay for supervision, insist on their child being able to walk home unsupervised? Does distance, density, current weather condition factor into center liability?”
Tom Copeland: It depends. You need to make sure that the child will be safe. This means checking with child protection or your licensor to find out if they believe the child would be at risk and you must report it as a mandated reporter. If they are okay with the arrangement, then you want a written permission form signed by both parents clearly stating when the child will leave the center alone. You also want to have business liability insurance to protect yourself in case the parent does sue. Assuming you are taking safety precautions and not releasing a child when you think it is dangerous (weather, child ill, etc.) then it’s highly unlikely you can be held liable. Even if everyone else is okay with this, don’t agree to it if it makes you uncomfortable or you are losing sleep about it.
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Q.30. “Can an older sibling at age 16 or 17 pick up a child in a vehicle as long as the parent says they can?”
Tom Copeland:. Same answer as above.
Custody Disputes
Q.31. “If I’ve never me the biological parent and he/she is not on the pickup list, how can I give the child to the stranger–even if they are the biological parent?”
Tom Copeland: As a general rule, biological parents have the rights to their children unless a court has restricted their rights. If you know the person who wants to pick up the child is the biological parent, you must give the child to the person, even if the person is not on the pickup list. If you don’t know that the person is the biological parent, then do what is reasonable to try to stop the person from taking the child. This means asking the person to leave, contacting the biological parent to find out if the person can take the child, and calling 911 if the person won’t listen and takes the child.
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Q.32. “You mentioned not putting the child in another area if parent insist on taking the child. What safety precautions should we take, lock the doors?”
Tom Copeland: I assume we are talking about a situation where a person who is not authorized to pick up the child is attempting to take the child. Your primarily responsibility is to keep children safe. It’s reasonable to lock the door and not let the person inside. It’s reasonable to try to talk the person out of taking the child. It’s not reasonable to do something that will escalate the situation and put children, or staff at risk. I don’t recommend locking children in another room. Do not get physical with the person.
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Q.33. “In the state of Indiana the mother has custody over the father if she enrolls the child. Does she have to have papers proving she has physical custody?
Tom Copeland: I don’t know what the specific laws say in Indiana. State laws can vary. But, if this mother, or any mother, says she has sole custody, your program wants a copy of the custody order for your files. Without such an order, you must allow the father to take the child.
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Q.34. “Who is authorized to make changes in the emergency contact if parents are separated but have joint custody?”
Tom Copeland: If they have joint legal custody then you want both parents to agree before changing the emergency contacts. Make them come up with a list that they both agree to, or tell them you will go by who is on the current contact list.
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Q.35. “What if a mother never listed a father on the paperwork because they are not together?”
Tom Copeland:. Unless you have a copy of a court order that restricts the rights of the father, the father still has rights to his child, even if he is not living with the mother.
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Q.36. “If a parent is not on a pick up list do they have to prove they are the parent before a center would release the child?”
Tom Copeland: If you know the parent is the parent, then they can pick up the child, regardless of whether their name is on the pick up list.
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Q.37. “How can you guarantee who is the biological parent if the name is not on the birth certificate?”
Tom Copeland:. I’m not sure you can. If you find yourself in a situation where you are not sure if the person trying to pick up the child is entitled to pick up the child, you can always call the police and have them sort it out.
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Q.38. “What about a grandparent? If the grandparent comes to pick up the child but the parent has not told the center about it. What is the best thing to do?”
Tom Copeland: Grandparents don’t have the right to pick up children unless the parents give their permission or the grandparents have legal rights to the child. In this situation, I’d tell the grandparent to wait until you contact the parent to find out if it’s okay for them to pick up. If the grandparent insists on taking the child, call 911.
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Q.39. “What happens if the other parent makes a fake note and you can’t get ahold of the parent to verify the note?”
Tom Copeland: You aren’t liable if a parent gives you a permission note and you don’t know the note has been faked.
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Q.40. “Is a copy of a custody decree sufficient or should it be an official court document with a raised seal?”
Tom Copeland: I think a copy is fine.
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Q.41. “Can the non-custodial parent with visitation pick-up privileges send anyone else to pick up the child?”
Tom Copeland: Let’s say, according to the custody order, the father is authorized to pick up on Monday and Wednesday and mother is authorized to pick up on Tuesday, Thursday and Friday. I think the best policy is to allow either parent to authorize other people to pick up on their days, since they are responsible for those days. The other parent shouldn’t be able to veto this.
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Q.42. “Are we able to photocopy the person’s license for id verification?”
Tom Copeland: Yes, I think it’s a good idea, particularly for a child care center when multiple staff may be around when parents come to pick up.
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Q.43. “What if the father’s name is on the birth certificate?”
Tom Copeland:. You should then assume he has legal rights to the child unless the mother produces a court document that says he doesn’t.
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Q.44. “Both parents register a child, they are both legal guardians. They later separate and the mother, all of the sudden gets mad at dad and tells us he’s not allowed to pick up child. What do we do?”
Tom Copeland:. He gets to pick up the child because he has legal rights to the child. Only a court can take away the legal rights of a person.
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Q.45. “Are these custody rules for pick up the same in Canada? Do they apply to Michigan?”
Tom Copeland: I don’t know the rules for Canada. Each state may have it’s own rules. Check with you state attorney general’s office for further information.
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Q.46. When parents have a parenting time schedule and mom tries to pick up on dad’s time, does center have to give child to mom?”
Tom Copeland: If this parenting schedule was set by a court order, then the mother does not have a right to the child during the father’s time. If this is an agreement made between the parents, without any court involved, then either parent can pick up whenever they want, despite their schedule.
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Q.47. “If a grandparent has a Power of Attorney for the children, and the mother comes pick up the children, what is the center’s responsibility?”
Tom Copeland: Power of Attorney probably has nothing to do with physical custody. Therefore, the mother can pick up the child. If you are not clear whether or not the document given by the grandparent does restrict the right of the mother to pick up the child, you should call the police and have them resolve the matter.
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Q.48. “What about families who do not list a second parent on the enrollment paperwork (say they are a single parent) and then someone shows up stating they are the father of the child?”
Tom Copeland: Since you do not know that the person showing up is the father, you should do what is reasonable to prevent him from taking the child. If the father won’t leave without the child, call 911.
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Q.49. “What can I expect when being called as a witness to a father’s actions?”
Tom Copeland: If either parent is calling you as a witness you should only respond to questions you are asked directly. Don’t offer your opinion unless directed to do so by the judge. Stick to the facts that you saw or heard. Don’t show bias towards one parent or the other.
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Q.50. “How does the biological parent prove that they are the parent if they aren’t on the pickup list?”
A.50. A birth certificate. Or maybe they can produce some other court document that declares they are the parent.
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Q.51. “Regarding custody situations, how do you recommend handling same sex parents?”
Tom Copeland:. Ask to see court documents as to who has rights to the child. Follow whatever the court document says. If the parents are legally married, treat them the same way as any other parent.
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Q.52. “In the case of a mutual custody but the parents are separated, no court order just a verbal agreement. If the mother chooses to remove the child from the program, does the father need to be notified?”
Tom Copeland: No. The answer would be the same if the parents were happily married and living together.
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Q.53. “In our state we ask for a photo ID to verify. Is that legal?”
Tom Copeland: Yes, you can ask for a photo ID before giving the child to the parent or any authorized person on the pick up list.
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Q.54. “Do step-parents have the same rights as the biological parents?”
Tom Copeland:. No. State laws can vary on this issue, but your program should ask for clarification from the biological parent as to whether they want the step-parent to have equal rights to the child.
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Q.55. “This happened to me this morning. A single mother who never been married to the father tells me do not let her father pick her up. What do I do?”
Tom Copeland:. I assume you know who the father is. The answer can vary depending on your state. In Minnesota the mother has all the rights to the child if the parents were never married. Unless you know your state law, I would honor the wishes of the mother and not let the father pick up the child. If the father objects, ask the father to produce something in writing from a court that says he can pick up. If he tries to argue about this and insists on taking the child, call 911.
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Q.56. “Should you have both parents complete a enrollment packet when there is shared custody and parents pay separately?”
Tom Copeland: Yes. This is so you can enforce the contract against either parent.
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Q.57. “What if the mother is getting a restraining order on the day that the father tries to pick up? Can we refuse to have the child picked up?”
Tom Copeland: Not until you get a copy of the restraining order. You don’t want to rely on the word of one parent against the other.
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Q.58. “If a parent is NOT listed on the birth certificate does the other parent HAVE to have court ordered papers or can they strictly state they are not allowed to pick up?”
A.58. If you know who the father is, you should assume he has the rights to the child, even if his name is not on the birth certificate.
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Q.59. “What if you don’t know the father and he has been gone for years, no court orders, never married?”
Tom Copeland:. Call 911.
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Q.60. “If one parent has physical custody of child and the other is allowed supervised visitation as per a court order can the child center honor the custodial parent’s request to deny the non-custodial parent access to the child while at the child care center? Isn’t it a liability for the center if they do allow the non-custodial parent access to the child since the court order only allows “supervised” visitation?”
Tom Copeland:. You must follow what the court order says. If it says the non-custodial parent may only see the child while “supervised” then you should not allow this parent to see the child in your program without supervision. If you are in violation of a court order you can be sued by the parent. If you are not clear what the court order means, make a decision based on what you believe is in the best interests of the child. If a parent objects, contact the police to sort it out.
Other Legal Issues
Q.61. “If you choose to put “loose parts” on your playground (milk crates to build with) and a child falls off one, are you considered negligent because the state does not consider the milk crate part of the approved playground?”
Tom Copeland: If you are in violation of your state’s licensing rules regarding outdoor safety, yes you can be considered negligent. Ask your licensor if what you are doing is approved.
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Q.62. “I am a new in home provider. Is there any liability to having un-vaccinated children in my care?”
Tom Copeland:. This is a complicated question. It depends on what state you live in. Some states prohibit child care providers from refusing to enroll un-vaccinated children if the parent’s objection is based on religious, medical or personal beliefs. If you do admit a child and another child is injured, the parent of the injured child may sue you. But, whether or not they will win depends a lot on the circumstances. You want business liability insurance to defend you against a parent lawsuit.
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Q.63. “When a parent signs a contract or other legal form, should we require signatures from both parents on all forms to ensure both are legally responsible?”
Tom Copeland:. Absolutely yes.
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Q.64. What if a 10 year old talks about bringing a gun to daycare and killing everyone? I’ve shared it with the mother, but should I be telling someone else? Mom doesn’t seem to address any of my concerns.”
Tom Copeland: I would report this immediately to your licensor or child protection or the police.
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Q.65. “Is there a statue of limitation on the length of time for a child to sue their previous caregiver?”
Tom Copeland: The answer depends on what state you live in. In some states it’s 18 and in others its 21. I don’t know the rules for all states.
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Q.66. “Can you refuse to care for a child due to a medical condition such as food allergy, diabetes or other?”
Tom Copeland: All child care programs must comply with the Americans with Disabilities Act which says you cannot discriminate against children with disabilities. Food allergies and diabetes are disabilities. This doesn’t mean you have to care for all children with disabilities. It does mean you have to take reasonable steps to accommodate such children. If the only way to provide care would create a “significant difficulty or expense” you don’t have to provide the care.
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Q.67. “Do policies and procedures of daycare programs have to be signed by parents?”
Tom Copeland: No. You want parents to sign your contract that spells out when you will provide care and how much parents will pay for it. Your policies/procedures describe how you provide care and aren’t enforceable in court. You can have parents sign them if you want, but it’s not necessary. If the parents won’t follow your policies/procedures you can terminate the agreement.
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Q.68. “What about a disgruntled employee that has left and you fear will make complaint that is not true?”
Tom Copeland: Immediately contact your licensor and tell your side of the story. You want your licensor to hear from you first. Hopefully you’ve kept good records of any incidents with the employee before she left. If there were other witnesses to these incidents, make a record. Contact your business liability insurance agent and inform them of the situation.
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