Special Education and Divorce

Special Education and Divorce

special education and divorce
Special Education and Divorce

What happens when parents that share legal custody disagree on educational issues? The intersection of Special Education and Divorce can lead to tricky situations. It’s not impossible to imagine a situation where two parents, who both have a child’s best interest in mind, disagree with how a school should program for their child. This situation can get even more complicated when the school district has a third and differing prospective of its own. What do you do when the battle escalates from Parent vs. School to Parent vs. Parent vs. School?

Due Process

In some jurisdictions the parents may each have to file for due process and plead their case individually to a hearing officer. The hearing officer may be the one that ultimately decides what is appropriate for the child. In other jurisdictions it has been held that before parents can escalate a matter to due process, they must first agree on what they are requesting from the school district.

Family Court

Some parents may ultimately end up litigating educational issues in front of family court judges that, although wise, are not familiar with the intricacies of The Individuals with Disabilities Education Act (IDEA). Once a formal custody agreement is in place that outlines who will make the educational decisions, this document may control moving forward.

Guardians and Legal Definitions of Parent

Under the IDEA, guardians are seen to have the same rights as parents. § 300.30 defines Parent as:

(a) Parent means—
(1) A biological or adoptive parent of a child;
(2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent;
(3) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State);
(4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or
(5) A surrogate parent who has been appointed in accordance with § 300.519 or section 639(a)(5) of the Act.
(b) (1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.
(2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (4) of this section to act as the “parent” of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the “parent” for purposes of this section.

Bullet Points

  • The intersection of family court and special education can get very complicated
  • Parents may want to consider consulting with a special education attorney in collaboration with their family law attorney to ensure their child’s educational rights are protected as a part of any custody arrangement.
  • Based on where the parents reside after a separation and the time that the child is with each parent, the child’s legal residency in district may be impacted. This question becomes important when determining which school district (if the parents live in different districts) is responsible for child find and the delivery of a Free Appropriate Public Education (FAPE).



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Joseph W Montgomery, II

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