IEPs and Legal Issues

Shared Custody and Mom and Dad Disagree about IEP

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Joined: Feb 10, 2009
Posts: 1
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Posted Feb 10, 2009 at 10:00:21 PM
Subject: Shared Custody and Mom and Dad Disagree about IEP

Does anyone know anything about this experience? I have asked for an IEP for my son who is now 10 years old and has been diagnosed with NLD by 3 different Ph.D. psychologists and multiple testing data points. He reads at a 12.9 grade level (in the 4th grade), has math skills at the 47 percentile, processing speed at the 9-13th percentiles, motorskills 1.5-2.5 years behind, and is in the 10th percentile for writing.

The school and dad report the child is lazy, unmotivated, has a low tolerance for frustration, and the school psychologist has diagnosed the child with ODD (Oppositional Defiance Disorder). I work in a counseling center, and use the Kazdin parenting method (state the positive opposite in concrete terms), and my colleagues are livid that my son is now "ODD" because they see me with him on a daily basis and this kid is the most cooperative, respectful, and motivated child they've ever seen.

Now's the rub. Dad doesn't want an IEP. He doesn't think the child needs OT or ST. He wants to have a therapist so he can get another opinion and go back to ask for sole custody again, and in the meantime, my boy is without services and the school's calling him lazy and defiant. There are no positive behavior supports, and earlier this year they tried to expell him from the district because he likes to use the word, "butthead" in reference to school officials and school rules.

Dad and I share 50/50 custody, and dad tells the school he's fine. Now the school says no IEP. What can I do?????

If life were fair, we'd all be a lot worse off.

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Joined Apr 29, 2008
Posts: 135

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Posted:Jun 24, 2009 3:07:21 PM


Your issue is one that all schools wish would never surface, that being custody issues that require consent.

As for your particular issue that you describe your husbands refusal to proceed to an evaluation versus your desire to proceed is one that will just have to be resolved thru your respective attorney's.
At some point, one of you is exercising wrong judgment on behalf of your child and the child is the victim here. Therefore you and your husband will need to mediate this and come to some compromise so that both of you can both be happy and help the child. Please note that all the while your child is not being served.

To the extent the school division does not suggest there is a learning issue may in fact be true. The problem may be that the child's interest has come into the middle of a struggle between the two parents. However, should a school division believe there is a compelling learning issue, they have procedural remedies to appeal either of your parental decision's to a third party. Conversely, you as a joint custodial parent, have a right of appeal the same as your husband in this instance. He cannot disallow you this privilege in any way shape or form.

So the bottom line is this: should you feel compelled that you are correct in your belief that your child requires the benefit of special education you may request an evaluation and the school division must act upon this referral. Should they decide an evaluation is not warranted, you may further exercise your procedural rights under the IDEA and that is to file a formal complaint or a due process hearing or request mediation to resolve the differences.

Your husband may have joint custody but he may not devoid you of parental privilege within the requirements and provisions of IDEA.


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Joined Jan 25, 2008
Posts: 269

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Posted:Jun 26, 2009 7:30:41 AM

If the problem is impacting behavior and he has been diagnosed with ODD, has Response to Intervention for Behavioral Supports been implemented? While you iron out the IEP issues with his father, perhaps the school could implement positive behavioral supports in the interim. Here is an article that may be useful:


Also, this article on Divorced Parents at LDOnline, may be of interest:


In particular, read the paragraphs under these subheadings:

"Who can give consent when a child receives special education?"


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

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Joined Dec 01, 2004
Posts: 6

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Posted:Jun 26, 2009 7:51:56 AM

With those test scores, there are definitely red flags for LD's.

Many times schools will simply place the blame on the student, when in fact, test scores show there is a problem.

Your first issue of course, will be to resolve the problems between you and your former husband. However, why don't you talk to him about disagreeing with the school's testing and requesting an Independent Educational Evaluation at public expense? IEE's are almost always more comprehensive and thorough than district testing. Once you put your request in writing, district cannot delay in either granting your request for the IEE or filing for due process to defend their own evaluations. If you go to wrightslaw.com, there is alot of info re IEE's and sped in general.

Good luck!


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