Divorce and Special Education:
Factors to Consider
by Michael Connolly, Esq.
McAndrews Law Offices, P.C.
Navigating the special education system can be a daunting and difficult process for most parents; and if you are divorced, navigating that system can become more complicated. For the divorced parent, there can be additional factors that need to be considered at just about every step of the process.
As is the case for parents who are not divorced, assuming that both individuals agree on educational programming decisions, there are generally no complicating issues that arise from being divorced; however, potential problems can and often do arise when parents disagree over their child’s needs or the type of programming he or she requires. As a general rule, school district swill (and should) presume that both parents share legal custody of the student (i.e., the legal right to make decision on behalf of the student, including decisions involving the child’s education), unless the school district is provided with a copy of court order or custody agreement to the contrary. Where a custody agreement or court order gives one parent specific educational decision making authority or gives one parent sole legal custody, that parent alone can make educational decisions on behalf of the student.
In the context of special education, the parent with educational decision making authority is the only parent who can sign a Notice of Recommended Education Placement (NOREP) approving an Individualized Education Program (IEP), sign a Permission to Evaluate or Reevaluate form (PTE/PTRE), initiate due process proceedings and sign settlement agreements, or authorize any other action that requires parental consent in the educational context. However, unless the other parent’s parental rights have been terminated, which is uncommon, he or she is still entitled to participate in the student’s education, including having access to the student’s educational records and attending IEP meetings, parent-teacher conference, and other school events. Where both parents share legal custody and retain the authority to make educational decisions on behalf of their child, both parents retain the ability to approve or disapprove a NOREP and IEP, provide or withhold consent for an evaluation or reevaluation, retain counsel to initiate due process proceedings regarding disagreements over the educational programming and placement being provided to their child, and both parents must sign any agreement as a result of a settlement.
As one might imagine, shared legal custody can create some issues in the context of special education where parents disagree over programming and placement issues. For example, if a school district propose to change the supports and services included in a student’s IEP, and one parent approves those changes and wants them implemented, but the other parent disapproves those changes and initiates a due process hearing, the proposed changes cannot go into effect pending the completion of the hearing. Similarly, if a school district and one parent resolve a pending due process complaint, but the other parent refuses to sign the settlement, the resolution cannot go forward until the disagreement between the parents is resolved.
Although not as potentially complicating a factor as legal custody, physical custody (i.e., which parent the student resides with), can impact some educational decision as well. For example, physical custody can impact what school district a student can attend where the parents live in two different school districts. Assuming that the parents share physical custody, the law allows the parents to choose either school district. If one parent has primary physical custody, however, the student must attend the school district in which the parent with physical custody resides. Physical custody orders and agreements can also have an impact on a parent’s access to a student during the school day or a parent’s ability to pick a student up from school (absent consent from the custodial parent).
Disagreements between parents can occur in virtually any setting, including educational decisions for their child; however, when divorce is a factor, such disagreements are often more apparent and challenging to resolve. In order to effectively address these issues when such debate is foreseeable, it is critical for parents to bring attention to these concerns early on through their existing custody arrangement.