Special Education and Family Law:
Implications of Divorce on Parental Participation and Consent
By: Christina Soliman, Esq
Divorce. It affects everyone involved, but it can be especially devastating for children with disabilities. According to the American Psychological Association, about 40 to 50 percent of married couples in the United States divorce. Research also suggests that the divorce rate is higher for parents of children with special needs. While divorce brings about inevitable changes in the home setting, it may also change how parents navigate special educational matters for their children. Nothing in the statutes or regulations states that parents must agree with each other. Parents have the right to present their own individual viewpoints and opinions of what their child needs in order to access a free and appropriate public education. Yet, both parents have IDEA rights that allow them to be a part of the Individualized Education Program (IEP) process, presenting problems when important decisions need to be made concerning the child’s special education and the parents do not agree. Thus, which parent has the right to make educational decisions regarding the child’s IEP? Do both parents need to consent to have their child assessed for special education, receive services, or be placed in a new school?
Which parent has the right to make decisions regarding their child’s special education?
When the parents of a student with special education needs are divorced, the parental rights established by the IDEA apply to both parents, unless a court order or state law specifies otherwise. For special education purposes, only parents with legal custody or court-ordered educational decision-making rights have standing to challenge school district action regarding their child’s education.
What’s the difference between legal custody and physical custody?
It is important to know the difference between legal custody and physical custody. Joint legal custody means that both parents “shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” (California Family Code § 3004) Thus, parents sharing joint legal custody must communicate with each other and co-parent in a way that involves the other parent in major decisions, including educational ones. Joint physical custody means “each of the parents shall have significant periods of physical custody in such a way as to ensure frequent and continuing contact with both parents.” (California Family Code § 3004) When a judicial order identifies a specific person or persons as having the authority to make educational decision on behalf of a child, that person is determined to be the parent for purposes of the IDEA. (34 C.F.R. § 300.30(b).)
o Tip: Family law attorneys should give special consideration to clients with children who have disabilities. It is important for divorcing parents to have a final divorce decree that clearly states which parent will make educational decisions, or in cases where these decisions are shared, how parents can overcome a standoff when disagreements occur. When an ex-spouse will not be participating at all in educational matters, be sure to have a stipulation to this effect. Precise drafting helps guide the decision-making process so as not to delay needed services for the child.
Who has the right to access educational records?
Pursuant to the Family Educational Rights and Privacy Act (FERPA), either parent, regardless of “custody,” has the authority to inspect or review the education records of the child unless the school district has been provided with a court order that specifically revokes that right.
o Tip: When in doubt, school districts may ask to review the marital decree or stipulation for guidance about educational decision-making authority. Consult your family law practitioner for guidance on sharing this important document.
What rights do parents have under the IDEA?
Some of the rights that parents enjoy under the IDEA include:
o Prior written notice of meetings and proposed decisions or changes
o The opportunity to review student records
o Being a part of the IEP team and the development of their child’s IEP
o The right to exercise due process rights on behalf of the child (depending on court order)
o Receipt of progress reports
o The chance to agree or disagree with plans for initial evaluation and placement in special education
What happens when divorced/divorcing parents disagree about the proper course of action for their child? Is parental consent needed from both parents in order to proceed with a course of action regarding the provision of special education services?
The 9th circuit has yet to rule on this exact issue; however, a review of the Office of Administrative Hearings (OAH) cases identifies two critical factors: (1) the language of a custody order or marital agreement regarding legal custody and educational decisions and (2) whether both parents who hold joint legal custody are given a meaningful opportunity to participate in the IEP process. When one parent, who shares joint legal custody of the child, is largely ignored during the child’s special educational matters, OAH will find that a course of action, such as agreement to an assessment or services, requires the consent of both parents. This approach suggests that courts do not want to allow one spouse the ability to eclipse the other spouse’s parental privilege. Assuming that both parents are involved in IEP process, OAH will defer to the language of the custody order or marital agreement regarding educational decisions. Unless the custody order specifically states that both parents must agree on all major decisions regarding education, OAH will usually find that only one parent’s agreement is needed in order to proceed with a decision concerning special education assessments or services.
So what option does the non-consenting parent have? The non-consenting parent would presumably still have a right to challenge the decision by filing for due process, as he or she would still enjoy IDEA rights. Another conceivable option is for the non-consenting parent to ask the family court to change the order regarding educational decisions.
o Tip: It’s important to distinguish between notice and consent. Parents are within their rights to expect that school districts should be providing notice to both parents regarding assessment plans, upcoming IEP meetings, and any proposed change in placement or services. Divorced parents should be cautious of district efforts to “divide and conquer” the parents. All decision-making should proceed with a focus on child-centric outcomes.
Most importantly, divorced parents of children with disabilities should attempt to put aside their differences and work together to offer continued support to their child, especially during and after a divorce. With this mindset, parents are empowered to continue to be the best advocates for their child.