Special Education Decisions: Children of Divorced and Noncustodial Parents

The rate of divorce in America is high—it has been reported by various organizations to be as high as 41% to 50%. With these statistics, it is quite likely that a child in your class will be a child with divorced parents. This fact can create added headache for school staff in the special education process, particularly when determining which parent has the legal rights in relation to the procedural safeguards of the IDEA.

Although the IDEA does not specifically address this situation, divorced parents generally maintain their parental rights under the IDEA, unless a court order or another state law specifies otherwise. (71 Fed. Reg. 46568 (2006); and 34 C.F.R. § 300.30(b)(2)).  The IDEA defines “parent” broadly to include natural, adoptive, foster, and surrogate parents and even includes a person acting in the place of a parent if the child lives with that person.  20 U.S.C. § 1401(23).  All rights conferred on a parent in the IDEA, therefore, would be conferred on both parents even in a divorce, absent an order stating otherwise.

In Arizona, the courts must develop a parenting plan that outlines, among other things, “each parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care and religious training.”  A.R.S. § 25-403.02(C)(2).  Arizona law allows a court to grant joint legal decision-making or sole legal decision-making.  “Legal decision-making” is defined as “the legal right and responsibility to make all non-emergency legal decisions for a child including those regarding education . . ..”  A.R.S. § 2-.401(3).  Even where one parent in Arizona had been granted sole legal decision-making, the parent without decision-making authority is still entitled to equal access to records, including medical and education records, for the child (absent an order stating otherwise).  A.R.S. § 25-403.06(A).

Looking at Arizona custody law and the IDEA together, schools should be including both parents in the education process, including providing education records and participation in the special education decisions.  Nevertheless, consent for evaluation from one parent and IEP meeting participation by one parent will be sufficient to protect a school from an IDEA violation so long as the parent participating or consenting has not been specifically excluded from educational decision-making by a court order.  Schools should request a copy of the parenting plan so that it knows the specifics of the educational decision-making rights. If the plan does not delineate which parent is to make educational decision, then encourage the parents to have the parenting plan revised to reflect who and how educational decisions will be made , and how disputes between the parents will be resolved.

If there is a disagreement about educational decision- making, which parent makes the educational decisions when the parents have joint legal-decision making? Hearing officers and judges will typically look to the language of the parenting order to determine who holds educational decision-making rights.

Absent a delineated parenting plan, the courts are split on this issue. In Westside Union Sch. Dist., 35 IDELR 88 (SEA CA 2001), parents with joint custody disagreed on educational decisions-making and the hearing officer granted each of them the option to request due process, so long as both agreed.  Another SEA decision stated that divorced parents must resolve their disagreements about their child’s educational program between themselves before bringing their concerns to administrative reviewers. North Allegheny Sch. Dist., 26 IDELR 774 (SEA PA 1997).

Most of the time, developing appropriate educational plans for students of divorced parents is collaborative and successful.  However, when an educational disagreement between divorced parents arises, the school district cannot play a role in mediating that dispute.  The school must remain neutral and continue their focus on providing appropriate educational services to students.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact 480.461.5300, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.