According to the American Psychological Association, 40-50% of marriages in the United States end in divorce. Of all children born to married parents this year, 50% will experience the divorce of their parents before they reach their 18th birthday. (Patrick F. Fagan and Robert Rector, “The Effects of Divorce on America,” Heritage Foundation Backgrounder, May 2000.)
So, the question arises: What happens to kids with special education needs who come from broken homes?
It is important to recognize that special education law is, for the most part, federal law and the same in all 50 states, but family law is state law and may differ from state to state. Thus, the following are just a few issues facing divorced parents and the education of their children with disabilities. You should check with your own state’s family law or hire a local attorney to get answers to your specific situation.
Which parent makes the special education decisions?
Education decisions fall under the category of “Legal Custody” of the children. This is different from “Physical Custody and Visitation”. Usually both divorced parents share legal custody of the children born during the marriage. This means that unless a court Order or divorce agreement says otherwise, both parents of a child with a disability share the education decision-making ability and rights.
However, the divorced parents might not always agree on the education choices for the child. For example, one parent might not feel the child has a disability or is eligible for special education; or one parent might not agree with the other parent on what the school is offering for services. There are a number of provisions in the special education law which require parental consent. Who has the ability or right to give such consent?
If there is (or might be) a dispute between the divorced parents, the parties should work out an agreement or have the Court decide to alter the general rule.
What happens when there is an agreement or Court Order?
A divorce agreement (sometimes called a Joint Parenting Agreement) or Court Order controls how education decisions are made for a child. Again, if the agreement or Order simply says “joint legal custody” (which is typical) or is otherwise silent, both parents have equal rights to making education decisions and should cooperate for the best interests of the child.
As stated above, sometimes one divorced parent allows his/her emotions towards the other ex-spouse interfere with the decisions for the child. In these situations, the agreement or Order should be very specific about who makes the special education decisions for the child or how a dispute can be resolved. Even if there is “joint legal custody” on other issues (religion, morals, etc.), education decisions may be separated out and either one parent has the exclusive right to make these decisions or the power to override the other parent.
The Court always has the power to enforce such agreement or Order or to modify it so as to protect the child.
How does physical custody or visitation impact this situation?
Although “joint physical custody” is a possibility (usually meaning the child spends equal amounts of time in each divorced parent’s home), it is not as common as granting one parent physical custody and the other parent visitation rights. This means one of the parents’ homes will be the ‘primary residence’ of the child and the other parent gets to see the child on a regular schedule.
This has a number of effects on the education of a child, particularly one with special needs. First, ‘primary residence’ of the child will determine the public school responsible for the child’s special education (who manages the IEP or 504 plan). If that school district is not particularly helpful to children with disabilities or has a track record of violating special education laws, it will impact both the Court’s and the parents’ positions on physical custody. Careful thought should be given to where the parent having physical custody resides and the ‘home school district’ (not to be confused with homeschooling). This is also a challenge if there is joint physical custody and the divorced parents live in two different school districts; it may be unclear to which school district the child is assigned.
Another issue that can arise is which parent has the right to attend IEP meetings. IDEA says that parental participation is critical, but the law does not say if that means one or both parents. What if the parent who doesn’t have legal custody wants to attend an IEP meeting just to make sure that everything is being done right for his/her child? Can the school bar him/her from the meeting? Also, is the non-custodial parent allowed to pick the child up from school? What if one of the parents has a restraining order against the other parent, but the order doesn’t discuss whether the restrained parent can visit with the child? Or attend school events?
The school may be caught in the middle.
If the joint parenting agreement or court Order spells out these issues, then the school should be provided with a copy of that document so there is no question. However, if the document doesn’t explicitly say what happens in these situations, the school might demand that the parents sign a document that clarifies the issues.
What if the child is not doing his/her homework?
Suppose either the custodial parent is not making the child complete homework assignments or it is the parent who has overnight visitation not enforcing homework because such parent doesn’t want to reduce their limited time with the child. What happens when the other parent learns that the child’s performance in school is deteriorating because of the homework issue? What can that parent do?
Again, the school’s special education services will likely be blamed when it may not be its fault at all. The school should not be caught in the middle on this issue either, but also the school should not be allowed to rely on this as an excuse for inadequate services. In this situation, it may be necessary to bring in a family law mediator or the judge to figure out a solution to this problem.
Who has the right to file a dispute with the school district?
It is not clear that even if one parent has sole legal custody on education decisions that such parent is the only one who can file a dispute against the school district. For example, if the custodial parent is not enforcing the special education rights of the child against the school, can the non-custodial parent file the lawsuit against the school?
In most states, non-custodial parents do not relinquish all of their legal rights over the child. For example, a custodial parent usually cannot leave the state without notifying the other parent and obtaining court approval to do so.
Thus, the non-custodial parent may retain the right to file a lawsuit on behalf of the child for violation of the special education laws by the school district. What is not clear is the role of the custodial parent in this situation.
These are unresolved issues at this point and I won’t propose to resolve them here. The purpose of this is to give you some food for thought on concerns you might face when parents of a child with a disability divorce.
As always, for specific legal advice consult with a lawyer in your locality. You may wish to consult with both a family law lawyer and a special education lawyer if one lawyer does not handle both areas.
Visit our SchoolKidsLawyer.com website to learn more about our special education law and advocacy services.