By Jeffrey L. Forte, Esq.
*This law article contains endnotes with enumerated caselaw citations and annotations. Please click on the full pdf version below for a complete listing of legal endnotes.
Although the U.S. divorce rate is falling, divorce rates run much higher for couples that have a child with special needs. Family law practitioners and their clients need to be aware of what parents rights are under the Individuals with Disabilities Education Act (IDEA) and under Section 504 of the Rehabilitation Act (Section 504) when drafting a divorce decree to ensure a child’s special education interests are appropriately addressed.
Which Parent Has the Right to Make Educational Decisions for their Child with Special Needs?
Generally speaking, unless otherwise provided by court order or state law, both parents have rights under the IDEA to address parental concerns and advocate for the needs of their disabled child’s special education and related services. “When the parents of a child with a disability are divorced, both parents are entitled to exercise their IDEA rights, unless a court order or state law provides otherwise.”
Issues inevitably arise when there is a disagreement between divorced parents relating to their child’s special educational needs and related services. This often leads to further confusion and difficulty regarding how the school district should proceed, thereby causing a three-way dispute between parent, parent and school district. Divorced parents should also be mindful of districts efforts to “divide and conquer” the parents. For this reason, as a matter of best practice, it is critical family law attorneys and divorced parents craft a final divorce decree clearly specifying which parent has “educational decision-making authority” over their child’s special education.
Which Parent Has Educational Decision-Making Authority When Not Specifically Addressed in the Divorce Decree?
It cannot be underscored enough that the divorce decree contains an educational decision-making authority clause when a divorced couple has a child with special needs. The family law practitioner or concerned divorced parent of a child with special needs should seek to modify or amend an existing divorce decree so that such a clause is contained.
In the absence of such a clause, family law courts and/or administrative impartial due process hearing officers examine which parent has legal custody, physical custody and/or medical decision-making authority over the disabled child. Under state laws, a divorced parent that neither possesses legal nor physical custody of the child may lack standing to participate in the child’s special educational process under the IDEA.
Preventing Your Child’s Special Education Needs from Being Interrupted During and After Your Divorce.
In the practice of special education law, there are many scenarios involving divorced parents challenging the special education services of their child. Here are a few examples:
Glen is a child that is outplaced at a specialized school. Mom and Dad are divorcing. Dad cannot accept that Benjamin requires a specialized school. Dad wants Benjamin back in district. Mom wants Benjamin to stay in his current outplacement. The school district would be happy to agree with Dad because it is cheaper. Dad signs the IEP first, allowing the school district to take Benjamin back into district.
Rob is a student that successfully is secured a private outplacement at mediation paid for by the district based on violations of FAPE. In exchange for Rob’s private outplacement, the district requires both Mom and Dad sign a confidential settlement agreement. Mom and Dad are divorced. Mom refuses to sign the agreement, thereby delaying and possibly preventing Rob’s private outplacement.
Tim is a student with disabilities that is not receiving a special education. Mom and Dad are divorced. Mom and Dad share joint legal and physical custody of Tim, but Mom handles medical decisions. Mom wants the school district to initially evaluate Tim for special education services, but Dad says no and refuses to provide consent to the district.
In each of these examples all of the issues can be avoided if the divorce decree contained an educational decision-making authority clause. Thousands of dollars, family court appearances, court-appointed guardians and the emotional toll both on you and your child can arguably all be avoided if you and your family law attorney pro-actively protect your parental educational decision-making rights over your child’s special education.
Had I Only Known: Special Education Questions to Ask While Crafting Your Divorce Decree.
Admittedly, I am not a family law attorney. I have never handled a divorce. However, as special education lawyer and a certified child advocate, I have represented dozens of divorced parents relating to the educational rights their child with special needs, often times in concert with my client’s family law attorney. Here are some questions you and your family law attorney should consider when going through your divorce:
- What parent will have educational-decision making authority over your child’s special education? Specify it in the divorce decree.
- What parent will attend and advocate at IEP or Section 504 meetings on behalf of your child? Note that under the IDEA, both parents have the right to bring anyone they wish to an IEP or Section 504 meeting and school districts do not have any authority to prevent it. You do not want to face the possibility of having your ex-spouse show up at an IEP meeting with his or her new boyfriend or girlfriend or controversial attorney or advocate that knows absolutely nothing of the needs of your child yet have an equal seat at the table.
- In so much as there is physical abuse or domestic violence between ex-spouses, a protective or restraining order can strategically allow a school district to prevent the abusive spouse’s personal attendance to an IEP meeting and instead participate by phone.
- If your child’s school district is not fulfilling the IEP or Section 504 obligations and you need to hire an advocate or special education lawyer, which parent will pay for such representation? Which parent gets to decide if such representation is allowed and by whom?
- If your child requires private evaluations, which parent will fund these costs? Which parent selects the evaluator?
- If you decide to unilaterally place your child in a private special education school because the school district is not providing FAPE, which parent will fund the private unilateral placement?
- Which parent has the right to obtain all of your child’s educational records under the Family Educational Rights Privacy Act (FERPA) with the school district?
- Will you and your divorced spouse live in different towns? If so, this can affect costs pertaining to your child’s private outplacement. Residency requirements are included in private settlement agreements with districts.
Do You and Your Family Law Attorney Need to Speak with a Special Education Law Attorney?
As with any legal fact pattern, it depends on your situation. Divorced and divorcing parents, as well as family law practitioners who have concerns about the child’s special education should always connect with an experienced special education attorney to ensure the child’s educational rights are ambitiously appropriate and that the child’s IEP, school placement and related services are being delivered with fidelity.
As a matter of best practice, I require any potential client that is divorced to provide me with a copy of their divorce decree prior to entering into an attorney client relationship in order to determine what parent has standing to pursue the special educational interests of their child. Regardless of the disputes among former spouses, divorced parents are encouraged to set their differences aside for the benefit of their child’s special education during and after the divorce and continue to be empowered as their child’s best advocate.
About the Author: Jeffrey L. Forte practices special education law, child advocacy and juvenile defense. He is the founding member of Forte Law Group LLC where he exclusively represents families and children with special needs. Forte Law Group LLC has offices in Westport, Shelton and West Hartford, Connecticut. For more information visit www.fortelawgroup.com
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