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Divorce: It Can Complicate Children's Special Education Issues

By: Carolyn Anderson and Beth-Ann Bloom

Each year, the parents of a million American children divorce. Despite a divorce, parents are still parents-and the best advocates for their children.

Divorce affects everyone involved, but it is often the most difficult for children. If the children have disabilities and need special education services, the situation can be even more complex. In that case, families need to see that:

  • the Individuals with Disabilities Education Improvement Act (IDEA 2004) rights of children with disabilities and their parents are protected, and
  • the students make educational progress.

The IDEA is a federal law that applies to all states, but individual states also make special education laws.* Education and divorce laws vary from state to state. Attorneys familiar with their state's laws on divorce, child custody, and education can help families. Talking to an informed lawyer is important if the divorcing parents have a child with a disability.

Divorce does not affect most education rights. However, the divorce decree, the legal document that describes parents' responsibilities after divorce, should clearly describe relationships among the parents, child, and education system. The following addresses the divorce-special education mix. Because there are differences in both personal situations and state laws, this information is not a substitute for legal advice.

Who can make special education decisions?

IDEA and state laws stress that parents are the decision makers for their children. Parents retain these rights unless a court order, state statute, or legally binding instrument revokes them. In other words, each parent remains a decision maker in special education after divorce unless the divorce decree or other court action specifically removes that right.

How do legal and physical custody impact decision making and school?

In a divorce decree, the court decides both legal and physical custody of children. In most states, courts have the option to grant parents joint legal custody. In some states, the trend is to give parents who are divorcing joint legal custody unless there is a very strong reason why one parent should not have it.

Joint legal custody means that both parents keep the right to make important decisions about their children's education, health care, and religious training. Under joint legal custody, unless the decree is written differently, both parents have the right to:

  • Be members of their child's Individual Education Program (IEP) team
  • Be given notice of team meetings
  • Exercise their due process rights
  • Receive progress reports
  • Have the chance to agree or disagree with plans for initial evaluation and placement in special education

The school must provide written notice of special education meetings to each parent who has legal custody of the child and has provided the school with an address.

Physical custody is different from legal custody in a divorce decree. Physical custody means the routine daily care, control, and residence of the child. The court can give sole physical custody to just one parent or joint physical custody, in which both parents share in providing the child's home and making daily decisions about the child. If parents have joint physical and joint legal custody, an agreement is drawn up that can include how the child's time is divided between the two parents, what school would be attended, etc. If the parents have joint legal custody but only one parent has physical custody, both parents would keep the rights to receive information, see records, and make decisions regarding special education.

What happens when a parent has sole legal custody?

Only a parent with legal custody has the right to participate in special education decisions. If the court grants sole legal custody, the school should be informed, preferably in writing. Schools may request to see the divorce decree. The parent without legal custody will no longer be part of the special education process.

What happens when divorced parents have joint physical custody and live in different school districts?

States' laws differ on this question. Some jurisdictions allow the custody agreement reached by the parents and approved by the court to determine which district the child will attend. Others assign the district based on how the child's time in residence is divided through the year. It is important for parents to be aware of the law in their state and not rely just on the opinion of the school district's registration clerk or on hiding the child's true living situation. Failure to abide by the state law could cause the school district to force a child to change school mid-year. The disruption can be difficult for any child, but it can provide extra challenges for a child in special education.

Who can give consent when a child receives special education?

If parents share joint legal custody and parental consent is needed for special education, the school district can proceed with the signature of only one parent. Because the schools need the signature of only one parent, there can be conflict between ex-spouses. For example, if one parent has sole physical custody but shares joint legal custody, the school could proceed with the signature of either parent and begin the proposed action. The parent who has physical custody has no greater legal rights than the other parent in special education decision making.

What happens when parents with joint legal custody cannot agree about special education?

It is most helpful if parents work in a cooperative manner despite their divorce.

  1. Some parents choose to come to an agreement or at least agree on a course of action before meeting with the other members of the IEP team.
  2. If the parents cannot find agreement, most school personnel use informal means such as school meetings to try to resolve the conflict.
  3. If the parents still cannot agree, either parent or the school may be able to use the alternative dispute resolution processes available in that particular state.
  4. If they cannot agree yet, either parent can request a due process hearing. When the issue of the hearing involves a change in educational placement, the child will in most cases "stay put" in the current school program until the matter is decided.
  5. If parents are in so much conflict that they are unable to work on behalf of the child in the special education process, either parent has the option of consulting an attorney about asking the court to alter the divorce decree.

*Information about your state special education laws and regulations is available through the Parent Training and Information Center (PTI) in your state or through your state's special education department.

Questions from parents-and responses from parent advocates

My former spouse and I have joint physical and legal custody of my son. When my child is with his other parent, he doesn't do his homework. What can the school and I do?

This is a very difficult situation for all parties involved. It is most helpful if you and your former spouse can focus on the needs of your child rather than on conflict between the two of you.

Can there be accommodations to help your child complete work no matter which household is home for the night? For example, would extra sets of materials or books be helpful?

Can you, your ex-spouse, and the school staff decide what homework is essential and draw up a written agreement assigning responsibility for follow-up? For your child's well-being, it is important to resolve the conflict.

My divorce is not yet final. There is an Order of Protection filed against my spouse because of abuse. Is my spouse allowed to come to the IEP meeting?

Unless the judge's order specifically bars your spouse from school property, the school district is legally obligated to invite both parents to the IEP meeting. For your protection, the school can take steps such as allowing your spouse to attend the IEP meeting through a speakerphone or by providing a security guard at the meeting. The school is not required to provide two separate meetings under these circumstances.

I am remarried. Can I bring my new spouse to the IEP meeting?

Yes. IDEA allows parents to bring other people of their choosing to IEP meetings. Unless your new spouse has adopted your child, however, he or she will not have the rights of a parent, such as signing special education consents and viewing school records. In the interest of good working relationships, it is wise to inform your former spouse that you have invited your new partner to the team meeting.

Originally published in the Summer 2005 Pacesetter, vol. 28(2). Reprinted with permission from PACER Center, (952) 838-9000.