Who's In Charge?

February 2015

 A reality of today’s society is that many campers have parents who are separated, divorced or otherwise in a relationship that creates uncertainty for the camp regarding who is in charge of the child in camp matters.

At issue is the confidence with which a camp can rely on one parent’s authority to, among other things, enroll (and remove) a child, specify activities, receive notice in the event of emergen­cies, consent to medical care, and permit visitors.

This article discusses strategies for protecting a camp from conflict­ing claims of parental authority. While many parents deal well with these issues, the camp should be prepared for those who do not. Involvement in these conflicts may jeopardize a camp’s relationships with its families, its reputation and its finances.

The number of strained and broken marriages and relationships in our society is sufficient to have produced some solid learning, and a good body of law, regarding the legal rights of parents in various stages of separation and divorce. And the problem of conflicting authorities is not limited to split families. While we may predict that conflicts may be sharper in those unfortunate situations, camp parents in more secure relationships may also disagree about who has what authority to act for the camper.

We offer only general suggestions below, which are not intended as a substitute for the advice of local counsel regarding laws applicable to a camp’s families in these situations. Practices and laws vary from state to state, of course. A camp will also be guided significantly by its core values and familiarity with its camp families and their expectations.

THE ISSUES

While a court order clearly describing authority in favor of the enrolling/signing parent should provide some degree of confidence in moving ahead without the other parent’s signature, a camp should pro­ceed cautiously.

If a non-signing parent who claims some parental rights fights vigorously against the other parent’s authority, the camp could incur significant legal fees if it becomes a party to the dispute. In addition, a child who is already at camp will likely be confused, hurt and embarrassed by the situation. Ultimately, a “vic­tory”, if there is such a thing in these circumstances, will be expensive and time consuming and certainly hard on the child and both parents. The assistance of legal counsel and an acute sensitivity to the camp’s culture and reputation for caring for the child will be important in deciding how to deal with a conflict that happens after the child is already enrolled or actually attending the camp session.

Divorce decrees and temporary orders pertaining to the custody of a child vary but, over the years, have become more compre­hensive in scope and anticipate many of the issues pertinent to a child of camp age. Courts take these matters very seriously and are not willing to leave issues affecting a child’s welfare solely to the parents. Well established in our jurisprudence is the concept of parens patriae – the State acting as “parent” on behalf of those unable to protect themselves, including protecting a child from foolish decisions of his or her actual parents. Paramount to this concept is the principle that a court presiding over a divorce or other proceeding affecting a child will carefully consider the parents’ custody rights and responsibilities to assure that the best interests of the child are being served.

Modern orders now frequently provide for joint physical and legal cus­tody, whereby the parents share equally in the responsibilities and rights of parenthood, some of which may shift as the child moves from the home of one parent to the home of the other. This relatively new form of custody is considered to be a more orderly and collaborative approach to the issues. A variation of the joint custody arrangement described above might be an agreement of “shared custody.” For example, the par­ents may have joint legal custody, but a different allocation of physical custody – say 60-40 – ultimately sharing parenting responsibilities in a meaningful way that is consistent with the best interests of the child.

A detailed “joint parenting plan” will often be incorporated into or ap­pended to a divorce decree or custody order, outlining pertinent details of the shared arrangement. As an example, a divorce decree or tempo­rary orders pending the divorce might include any or all of the following rights and responsibilities pertinent to our discussion:

• The “joint managing conservators” (under Texas law, those in a relationship of joint custody) are each entitled to receive information from the other, and to confer, regarding the health, education and welfare of the child;

• Each parent has access to the health and education records of the child and is entitled to consult with medical care givers and educators;

• When the child is in a parent’s possession (physical custody), that parent has the duty to care for, control, protect and discipline the child, and to consent to medical care;

• The parent in possession must promptly notify the other of a medical emergency, and authorize health care providers to disclose protected health information to the other parent.

With respect to camps, custody forms recommended by specialists in the field and commonly used in Texas, for example, include a provision that the parties (parents) are to agree (agreement not to be unreason­ably withheld) upon a camp and a camp term, and that a party will be designated as responsible for payments including transportation and necessary camp expenses. A careful attorney, wary of the prospect of fu­ture disagreements, will include in the Decree (or other orders) the name of the camp, its term, any restrictions on activities, permitted visitors and other matters better not left for future determination and potential dispute.

Despite these constructive developments in matters of family law and the handling of custody orders, divorce decrees and associated paper­work, a growing number of separated or divorced parents (including separations in same sex relationships) increases the potential for disputes. Camps do not want to be placed in the position of interpreting a legal document – whether a joint agreement or court order – that allocates the relative rights and responsibilities of two angry and conflicted parents, after the child has already enrolled in camp.

SOLUTIONS

So, what can a camp do to reduce or eliminate the chances of a conflict of parental authorities?

Areas of possible dispute include financial responsibility, medical consents and notices in the event of emergencies, activities allowed, removal of the child from the camp premises, permitted visitors, and a participant agreement containing an acknowledgment and assumption of risks and waiver of claims.

The best and most obvious tactic is to require that both parents sign the enrollment documents. Securing signa­tures of both parents can be difficult, however, even in happy families.

What is Plan B?

A camp will have a variety of options, depending on how aggressive it wishes to be in reducing the chances of conflict.

A camp may intentionally leave the issue of authorities unad­dressed, trusting in its relationships with its families to resolve differences if and when they arise.

A camp seeking more protection might require the (one) signing parent to represent in a camper enrollment agree­ment (containing other terms and conditions, of course) that he or she has the authority to enroll the child and execute the required documents and that he or she has obtained any and all other pertinent consents or authorities (including those required by a court decree or order). Even with these provisions, however, if the non-signing parent subsequently disputes the child’s attendance at camp, the camp might be faced with a battle in court (or mediation or arbitration if called for in the agreement).

A more aggressive camp might ask the parent if a court order or agreement exists which is pertinent to camp enroll­ment, so that the camp can properly consider next steps to satisfy itself that the authority exists. (These next steps might include an examination of the document, and consultation with its own and the parties’ legal counsel.)

Still more aggressive would be, in addition to requiring one or more of the representations described above, to ask the signing parent to agree that if the other parent challenges the signing parent’s authority: a) the child will be sent home promptly without refund of enrollment and fees and, b) the signing parent will protect the camp from the claims of the other parent, including paying all costs of resolving the dispute.

In varying degrees, these strategies should discourage a parent from signing if his or her authority to do so is in doubt, and provide a road­map for determining proper authority if a decree or order is in place.

EXAMPLES

Ultimately, a well drafted custody order or divorce decree containing provisions such as those described in Section II, above, should guide reasonable persons in resolving their conflicts before the camp be­comes involved in the controversy. And one would hope that, however strictly the decree, order or agreement is written, parents will work together with the best interests of their child in mind, and that any grievances they have that might negatively affect their child will be put aside for the summer. But don’t count on that. Some strange situations can arise.

CONSIDER THIS,

FROM A RECENT ACA HOTLINE REQUEST FOR HELP:

The mother of a camper enrolled him in camp and paid the registration fee. Prior to the opening of camp, the director received a letter from the attorney for the father of the child demanding that the child not be accepted at camp because the father had not given his consent. The attorney wrote that the father said that the child could not attend camp if his grades did not improve. The grades did not improve so now the father says that the child cannot attend. The father’s attorney threatened a lawsuit if the child is allowed to attend and enclosed a copy of the divorce decree granting joint custody. The same day, the camp also received a letter from the attorney of the mother of the child. This letter demanded that the child be allowed to attend camp as he was duly registered and the fees were paid. This letter threatened a lawsuit against the camp if the child was not allowed to attend. The camp director called the Hotline to discuss options, as the camper is due to arrive in one week.

Faced with these competing demands, what should a camp do?

The suggestions provided in Part III, above, demonstrate how proactive language contained in the enrollment agreement could assist the camp in this situation. For example, consider an enrollment agreement signed by only one parent and providing that the camp will promptly send the child home in the event of a controversy and that the signing parent will protect the camp from the consequences of the controversy, including costs. In the Hotline scenario, the result of these provisions would hope­fully provide incentive to the signing parent to resolve the dispute so that the child is able to stay at camp. And, these provisions, early on, should have caused a thoughtful signing parent to confer with the other parent before enrollment, to avoid a later conflict.

But what if, faced with the Hotline scenario, the camp has not set up any of these provisions in its enrollment agreement? How then can it best resolve the issues?

If the camp must rely on a court order or the terms of an agreement be­tween the parents – or if neither exists - the camp may need assistance from its legal counsel. The language of an agreement or order is rarely clear enough to allow a camp to act decisively in reliance on it, without counsel. Further, if there is no document which might address the prob­lem, it is even more perilous for the camp to proceed on its own. The cost – to the family and to the camp - of being wrong is simply too great. The prime concern for the camp and the family should be the welfare of the child, but in these strained circumstances, the arguing parents may not see that as the priority. When the camp, whether or not it has relied on representations of the signing parent, is challenged by the non-signing parent, a sensible reaction is to notify the signing parent and urge an amicable resolution of the dispute. If the camp cannot reach resolution with the parents, or that appears unlikely, the camp should seek assis­tance from its legal counsel, who may be able to resolve the matter in negotiations with the other party or his or her attorney.

CONCLUSION

Divorce, separation and split families are an increasingly frequent part of today’s culture. Good communication with your camper families and developing (with assistance from the camp’s legal counsel) appropriate camper agreements which draw on the strategies described above, will reduce misunderstandings and disputes that can hurt the child, jeopardize the camp’s relationships with its families and impact the camp’s financial resources.

 

Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415, or e-mail rgregg@gregglaw.net; www.rebgregg.com.

Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail reclaw@hansenstampattorney.com; www.hansenstampattorney.com.

*This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of rel­evant state and federal law as well as considerations regarding their specific business or operation.

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