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May 30, 2024 Feature

The Intersection of Special Education and Family Law: Thoughts for Family Law Attorneys in Divorce and Custody Cases

Richard D. Marsico

Introduction

The Individuals with Disabilities Education Act (IDEA) requires participating states to provide a free appropriate public education (FAPE) to all children with disabilities. The IDEA gives parents of children with disabilities significant rights and major responsibilities in developing and maintaining their child’s education. Getting the most out of the IDEA for their children requires parents to commit substantial time and financial resources that are difficult to provide in the best circumstances. When parents are having marital difficulties, separated, undergoing a divorce, or negotiating child custody, these difficulties can be exacerbated as parents navigate the intersection of the federal IDEA and state family law rules regarding educational decision-making and parenting time.

Providing special education to a child with a disability is an ongoing process that requires and benefits from parental participation. Neither the provision of special education nor the need for parental involvement pause during divorce proceedings or after custody is determined. The purpose of this article is to provide information about the IDEA to family law attorneys that will help them protect the educational rights of children with disabilities and their parents during divorce and custody proceedings. This includes (1) making an initial assessment of the provision of special education to the child; (2) consulting with a special education expert if necessary; (3) monitoring the school district’s provision of special education; (4) ensuring that the child’s and parent’s special education rights are protected; and (5) creating a clear and comprehensive custody agreement.

Part I is a very brief survey of the IDEA. Part II focuses on the role, rights, and expectations of parents of children with disabilities under the IDEA. Finally, Part III turns Parts I and II into an action plan. It identifies by category a list of parental rights under the IDEA, provides a set of questions to ask clients in divorce and custody cases who have children with disabilities to establish an informational baseline, identifies the documents attorneys should obtain, and includes a list of issue-spotting questions designed to assist attorneys in monitoring the provision of special education and designing custody agreements that clearly and comprehensively protect their client’s special education rights. Part III concludes with a list of common special education acronyms.

I. An Overview of the IDEA

Thisoverview describes the IDEA’s background, its substantive educational and procedural rights, the process for developing and maintaining special education services for children and remedies for IDEA violations, as well as a brief description of other laws that protect the rights of children with disabilities and their families. The goal of this overview is to provide family law attorneys who are not familiar with special education law with a basic understanding of the IDEA so they know what they know, what they do not know, and when to seek help.

A. Background

1. The IDEA Is One of the Many Legacies of Brown v. Board of Education

The IDEA can trace its roots to the Supreme Court’s decision in Brown v. Board of Education. When the Court decided Brown, school districts used their virtually unbridled discretion to exclude children with disabilities from public schools. Brown inspired advocates for such children to pursue a movement to open public schools to children with disabilities. Among other efforts, advocates filed lawsuits against states and school districts around the country asserting that excluding children from public schools because of their disabilities was unconstitutional and violated state constitutions and education laws. Two of these lawsuits, which resulted in judgments that required the school districts to admit students with disabilities, provide them with an appropriate education, and guarantee significant procedural protections, were catalysts for passing the IDEA.

2. Congress Passed the IDEA in 1975 to End Both Public School Exclusion and Warehousing of Children with Disabilities and to Ensure that They Receive an Appropriate Education

When Congress passed the IDEA, it found that of the more than eight million children with disabilities in the United States, more than half were receiving an inadequate education and one million were receiving no public education at all. The purposes of the IDEA include “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. . . .”

3. The IDEA Is an Example of Cooperative Federalism

Congress does not have express authority under the Constitution to regulate education but may use its Spending Clause power to support states in their efforts to educate children, including children with disabilities. Using its Spending Clause authority, Congress authorized the Secretary of the Department of Education (DOE) to distribute funds to states to educate children with disabilities provided that the state abides by the IDEA. These include providing a free appropriate public education to children with disabilities in the least restrictive environment; developing a process for identifying children suspected of having a disability, evaluating them, and determining whether they have a disability and are eligible for special education; developing an individualized educational program for an eligible child; and providing procedural protections to parents, including the opportunity to challenge any aspect of their child’s special education in an impartial hearing.

4. Local School Districts Generally Carry out the State’s IDEA Obligations, but States Remain Ultimately Responsible

States (known in the IDEA as “State educational agenc[ies]” or SEAs) are obliged to comply with the IDEA. They can delegate their responsibility and provide IDEA funds to public school districts (known in the IDEA as “local educational agenc[ies]” or LEAs) if the district commits to complying with the state’s policies. For the purposes of this article, school districts are where the action is, and this article will refer to the IDEA obligations of local school districts even though the state is ultimately responsible.

B. Substantive Educational Rights

This section describes the two key substantive educational rights for children with disabilities that the IDEA creates: the right to a free appropriate education (FAPE) in the least restrictive environment (LRE). It also describes the rights of children with disabilities who attend private school and children with disabilities from birth until age three.

1. The IDEA Requires School Districts to Provide a FAPE to Children with Disabilities Ages Three through Twenty-one Years, Inclusive

A FAPE consists of special education and related services provided to children with disabilities at public expense and under public supervision. “Special education” is “specially designed instruction . . . to meet the unique needs of a child with a disability. . . .” “Related services” are “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education. . . .” Thus, to provide a FAPE, a school district must provide, at no cost to the parents, specialized instruction to meet the unique needs of their child and related services necessary for the child to benefit from their special education.

2. The School District Must Provide the FAPE in the LRE

The IDEA’s requirement that school districts provide the FAPE in the LRE is also one of the IDEA’s foundational elements, as Congress intended it to eliminate school districts’ segregation of children with disabilities in inadequate classrooms. The IDEA requires school districts to educate children with disabilities “[t]o the maximum extent appropriate” with “children who are not disabled. . . .” Districts may remove children with disabilities from the “regular educational” environment “only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

3. Children with Disabilities in Private Schools Have IDEA Rights, but They Are Limited

Parents have a constitutional right to send their children to private school. The IDEA requires school districts to provide limited educational services to children with disabilities who attend private schools. They are not entitled to FAPE and receive an individualized education services plan (IESP) instead of an individualized education program (IEP). Parents may not request an impartial hearing if they wish to challenge the educational services their child is receiving, but they may file a complaint through the state’s IDEA administrative complaint process. Finally, the school district has discretion about where to provide educational services to students in private schools and may, but is not required to, provide the services at private schools, including religious schools, to the extent permitted by law.

4. Known as “Part C,” Sections 1431 Through 1444 of the IDEA Provide for the Education of Infants and Toddlers with Disabilities

To be eligible for a grant from the DOE to provide services under Part C, a state must show that it has adopted a policy that it will provide “appropriate early intervention services” to all infants and toddlers with disabilities in the state. An “infant or toddler with a disability” is a child under three years old “who needs early intervention services” because they are “experiencing developmental delays” or have “a diagnosed physical or mental condition that has a high probability of resulting in developmental delay,” and may include “at-risk infants and toddlers. . . .” The state must ensure that each infant or toddler has an individualized family service plan (IFSP) that must include a description of the early intervention services the child will receive. Part C also includes procedural protections for parents and a dispute resolution mechanism.

C. The Process for Developing and Maintaining a Child’s Special Education Program

1. Introduction

The process for developing a child’s special education program has a pre-eminent place in the IDEA. In Rowley, the Court created a two-step test for determining whether a school district provided a FAPE to a child with a disability. The first step is to determine whether the school district complied with the IDEA’s procedures. If the district did not, and the district’s procedural violation interfered with the parent’s opportunity to participate in the IEP process or deprived the child of education benefits, it committed a FAPE violation. Not until the second part of the test should a court consider whether the education the district provided was sufficient to meet its FAPE obligation: Was the IEP “reasonably calculated to enable the child to receive educational benefits?”

The Court reemphasized the importance of the IDEA process in Schaffer v. Weast:

The core of the statute . . . is the cooperative process that it establishes between parents and schools. . . . The central vehicle for this collaboration is the IEP process. State educational authorities must identify and evaluate disabled children, develop an IEP for each one, and review every IEP at least once a year. Each IEP must include an assessment of the child’s current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide.

2. The Five Key Steps in the IDEA Process

a. First, the District Must Identify Children It Reasonably Suspects of Having a Disability, Which Is Known as “Child Find”

The IDEA requires school districts to have policies and practices in place to ensure that they identify, locate, and evaluate all children with disabilities residing in their district who need special education and related services.

b. Second, the District Must “Conduct a Full and Individual Initial Evaluation” of the Child

In conducting the evaluation, the district must use a variety of assessment tools and strategies “to gather relevant functional, developmental, and academic information” to help it determine whether the child has a disability. The district may not use a “single procedure” as the “sole criterion for determining an appropriate educational program for a child” or evaluative tools that are “racially or culturally discriminatory,” and generally must administer the tools in “the child’s native language or mode of communication. . . .”

If a parent disagrees with a school district’s evaluation, the parent has the right to ask the school district to fund an independent educational evaluation (IEE) conducted by a “qualified examiner” not employed by the district. In response, the district must either provide the independent evaluation at public expense or request an impartial hearing to justify its denial of the request.

c. Following the Evaluation, the District Must Determine Whether the Child Is Eligible for Special Education and Related Services

In order to be eligible for IDEA services, a child must (1) have one of 10 listed disabilities and (2) as a result need special education and related services. With the exception of deaf-blindness and a specific learning disability, the disability must have an adverse effect on the child’s education. Thus, to prove eligibility for special education, a child must have a statutorily listed disability and show that the disability (except for deaf-blindness and specific learning disabilities) adversely affects their education and that special education can address this.

d. If the Child Is Eligible for Special Education, the District Must Prepare an IEP for the Child

The IEP must state the child’s disability; level of academic performance; how the disability affects their performance; annual measurable goals; how progress on the goals will be measured and reported; the special education, related services, and accommodations the child will receive and their frequency and location; the extent to which the child will be separated from other children; and, in the first IEP to be in effect when the child is 16, a set of post-secondary goals and the transition services necessary to assist the child to meet these goals.

The IEP is prepared by a team—frequently known as the IEP Team—that must include the child’s parents, teachers, knowledgeable district administrators, and other individuals with special knowledge of the child at the request of the parents. The IEP must be in place by the beginning of each school year. The school district must review and revise, as appropriate, the IEP at least annually. If a child with a disability transfers to another school district in the midst of an academic year, the new school district must provide services comparable to those that were in the child’s IEP from the former school until the new district creates a new IEP.

e. Reevaluation

A school district must reevaluate a child with a disability upon the occurrence of one of the following: the district determines that the child needs a reevaluation; upon parental or teacher request; and at least once every three years.

D. The IDEA’s Dispute Resolution Procedures

The IDEA’s dispute resolution process includes an impartial hearing, judicial review, a “stay-put” rule, a state complaint provision, and procedures to follow when a school seeks to suspend a child with a disability.

1. The IDEA Creates an Administrative Hearing Process for Resolving Complaints

The IDEA permits “any party” to submit a complaint to the school district “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. . . .”

The IDEA does not identify who “any party” that can file a complaint is, but the section of the IDEA that describes what happens after a “party” files a complaint sheds some light: “Whenever a complaint has been received . . . the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing. . . .” This language suggests that although “any party” may file a complaint, only the parents and school district will receive a hearing.

Impartial hearings are informal compared with trials, as the procedural and evidentiary rules of judicial proceedings generally do not apply. However, the IDEA grants important rights to parties, including pre-hearing information disclosure and the rights to be accompanied and advised by counsel or other trained or knowledgeable individuals; “to present evidence and confront, cross-examine, and compel the attendance of witnesses”; and to a verbatim record of the proceedings.

2. A Party Who Loses at the Impartial Hearing May Challenge the Decision in Federal or State Court

The IDEA provides that “[a]ny party aggrieved by the findings and decision” at an impartial hearing “shall have the right to bring a civil action with respect to the complaint . . . , which action may be brought in any State court of competent jurisdiction or in a district court of the United States. . . .” The IDEA limits the scope of judicial review. It is not a full plenary proceeding with discovery, motion practice, and a trial. Instead, the court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.”

3. During the Pendency of the IDEA’s Dispute Resolution Process, Generally “the Child Shall Remain in [Their] Then-Current Educational Placement”

The IDEA’s “stay-put” provision prohibits a school district from removing a child with a disability from their educational placement while an impartial hearing or judicial litigation is pending. The pendency placement begins when the parent files a complaint. Courts have disagreed over who is obliged to pay tuition when a child’s pendency placement is a private school but the ultimate ruling is that the public school placement was appropriate. Some courts have ruled that the school district remains obliged to pay, while others have found that the parents must reimburse the school district.

4. The IDEA Regulations Require States to Set up a Separate IDEA Complaint Review Process

The state complaint process is different from an impartial hearing in a number of ways. Any “organization or individual” may file a complaint. The statute of limitations is one year. Within 60 days of the date the complaint was filed, the state must issue a decision. Decisions in prior impartial hearings are binding on any common issues raised in a state complaint.

5. The IDEA Provides Procedural Protections for Children with Disabilities Facing Suspension

In Goss v. Lopez, the Supreme Court ruled that when a state provides a right to a public education, students have a property interest in attending school that a school district may not deny without minimal due process. The IDEA adds additional protections for children with disabilities. A school district must notify the parents of a child with a disability that it plans to take disciplinary action, along with a description of all procedural rights, on the day it makes the decision. A parent who disagrees with a disciplinary decision regarding placement or a manifestation determination may request an expedited impartial hearing. For students with disabilities whose suspensions are for more than 10 school days, a team composed of representatives of the school district, a parent, and relevant members of the IEP team must determine whether the conduct underlying the discipline was a manifestation of the child’s disability. If so, in most circumstances, the district shall return the child to the original placement, conduct a functional behavioral assessment, and develop a behavioral intervention plan. If not, the district may impose the same discipline on the child as it would impose on other children not classified with a disability.

E. Other Important Legal Protections for Children with Disabilities

Besides the IDEA, there are several important federal and state legal protections for children with disabilities and their parents. The IDEA expressly provides: “Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities. . . .”

1. Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA) Prohibit Discrimination Against People on the Basis of Disability

Section 504 prohibits entities that receive federal financial assistance, including public schools, from discriminating against any “otherwise qualified individual with a disability.” Monetary damages are available under Section 504 and parents have standing to sue for damages they incurred as a result of discrimination against their children.

The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

2. The First Amendment and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution Protect Parental Choice About Where to Send Their Children to School, Including Children with Disabilities

In a series of decisions, the Supreme Court has made clear that parents have the right to make decisions about their child’s education. In Pierce v. Society of Sisters, the Court ruled that parents have a protected liberty interest in sending their children to private schools, including religious schools. In Wisconsin v. Yoder, the Supreme Court ruled that Amish parents had a First Amendment Free Exercise right to withhold their children from school after eighth grade even if it violated the state’s compulsory education law. Finally, in Zobrest v. Catalina Foothills School District, the Court ruled that the Establishment Clause did not prohibit a school district from spending IDEA funds for a sign language interpreter to accompany a child with a disability to a religious school.

3. The Equal Protection Clause of the Fourteenth Amendment Provides Limited Protection to People with Disabilities

The Equal Protection Clause provides: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” In City of Cleburne v. Cleburne Living Center, Inc., the Supreme Court ruled that the City violated the Equal Protection Clause when it denied the developer of a proposed group home for people with disabilities a “special use permit” that was required under a local zoning ordinance. Although the Court found in favor of the developer, it ruled that laws and practices that treat people with developmental disabilities differently are subject only to rational basis scrutiny.

F. Relief for IDEA Violations

1. Judges and Impartial Hearing Officers Have the Authority to Grant Appropriate Relief for IDEA Violations

The IDEA gives hearing officers and judges a grant of broad authority to award relief: “In any action brought under this paragraph, the court[,] . . . basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” The Supreme Court has ruled that this provision “confers broad discretion on the court.”

2. However, the Majority Rule Among the Lower Courts Is That Compensatory Monetary Damages Are Not Available for IDEA Violations

In the leading case of Sellers v. School Board of Manassas, the Fourth Circuit ruled that compensatory monetary damages for “pain and suffering, emotional distress, and other consequential damages caused by the lack of a free appropriate public education” are not available under the IDEA. This does not, however, preclude an award of compensatory monetary damages for violations of Section 504, the ADA, or other federal laws that protect the rights of children with disabilities.

3. Nevertheless, Parents Are Eligible for Equitable Remedies, Including Reimbursement for Money They Paid to Provide Their Child an Appropriate Education and Compensatory Education Services

Parents are eligible for reimbursement for tuition and other educational expenses they incurred in order to provide their child with an appropriate education if the school district failed to provide a FAPE. The Supreme Court has ruled that reimbursement is equitable in nature because it compensates parents for expenses the school district should have paid in the first place. In order to qualify for reimbursement, a parent must satisfy a three-part test: (1) the school district denied their child a FAPE; (2) the child’s private school provided an appropriate education; and (3) the equities favor the parent.

Additionally, the majority of lower courts have ruled that children are eligible for compensatory educational services to make up for the time that the school district denied a FAPE.

4. The IDEA Permits a Court to Award Attorney Fees to Parents Who Are Prevailing Parties

The IDEA gives federal courts jurisdiction to award attorney fees “to a prevailing party who is the parent of a child with a disability.”

II. The Role, Expectations, and Rights of Parents Under the IDEA

A. A Privileged (but Demanding) Role for Parents

1. In Passing and Amending the IDEA, Congress Recognized an Important Role for Parents

Congress found that the education of children with disabilities can be “made more effective by . . . strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home.” Thus, among the purposes of the IDEA are to protect the rights of children with disabilities and their parents and to provide parents with the tools to improve educational outcomes for their children.

2. The Supreme Court Recognizes That Parents Have a Crucial Role in Ensuring That Their Child Receives a FAPE

Several Supreme Court decisions have highlighted the important role parents play in the IDEA process. In its first decision on the IDEA, the Court in Board of Education v. Rowley squarely placed the burden of successful IDEA outcomes on both the school district and the parents. In light of the degree of participation the IDEA gives to parents in the IDEA’s process, the Court stated: “It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process . . . as it did upon the measurement of the resulting IEP against a substantive standard.” The Court continued: “As this very case demonstrates, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act.”

The Supreme Court reinforced the important role parents have in the IDEA process in several subsequent decisions. In Schaffer v. Weast, the Court stated:

Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. Parents are included as members of “IEP teams.” They have the right to examine any records relating to their child, and to obtain an “independent educational evaluation of the[ir] child.” They must be given written prior notice of any changes in an IEP and be notified in writing of the procedural safeguards available to them under the Act. If parents believe that an IEP is not appropriate, they may seek an administrative “impartial due process hearing.”

In Winkelman v. Parma City School District, the Court recognized the important role for parents in developing the child’s IEP:

Parents serve as members of the team that develops the IEP. . . . The “concerns” parents have “for enhancing the education of their child” must be considered by the team. . . . IDEA accords parents additional protections that apply throughout the IEP process. See, e.g., § 1414(d)(4)(A) (requiring IEP Team to revise the IEP when appropriate to address certain information provided by the parents); § 1414(e) (requiring States to “ensure that the parents of [a child with a disability] are members of any group that makes decisions on the educational placement of their child”).

This exalted role for parents can be a double-edged sword. Parental rights are an important part of improving educational outcomes for children with disabilities, and parental input into their child’s education is crucial, as parents generally know more about their child than the school district. On the other hand, placing a burden on parents to create successful educational outcomes for their children shifts a public responsibility to private hands and is unfair to parents who do not have the time or resources to carry this burden. This difficulty might be especially stark during divorce and custody proceedings when parents are distracted by other issues, and perhaps even more difficult when a family transitions from a one- to a two-household family.

3. Parents Have Their Own Enforceable Rights Under the IDEA

In Winkelman ex rel. Winkelman v. Parma City School District, the Court ruled that the IDEA grants parents rights of their own that they can enforce in court proceedings. Winkelman addressed whether a parent can be a “party aggrieved” under the IDEA and thus have standing to challenge the decision of an impartial hearing in court. Citing the many rights parents have under the IDEA, the Court ruled in favor of the parents, finding that they have an enforceable right to a FAPE for their children that they can vindicate in court.

B. A Parent Is Not Always a Parent for IDEA Purposes

1. The IDEA Includes a Broad Definition of a “Parent”

Under the IDEA, a “parent” includes “a natural, adoptive, or foster parent of a child . . . ; a guardian . . . ; an individual acting in the place of a natural 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 . . . an individual assigned . . . to be a surrogate parent.” The IDEA regulations provide that when more than one person is a “parent” pursuant to the statute, the biological or adoptive parent is presumptively the parent for IDEA purposes, unless a judicial decree or order specifies otherwise.

2. Not Everyone Who Is a Parent Under the IDEA Can Exercise the Rights of a Parent

In Taylor v. Vermont Department of Education, the Second Circuit considered which “parents” under the IDEA have the right to exercise the rights that the IDEA grants to parents. Taylor involved a dispute between Taylor, the child’s noncustodial natural mother, and the school district over child L.D.’s special education. The divorce decree for the mother in Taylor stated:

The court allocates all legal rights and physical rights regarding the choice of schooling for the child . . . to the father. Such rights shall include the right to choose the school location, and participate in all parent teacher conferences . . . with full authority on behalf of the child. . . .

The mother shall have a right to reasonable information regarding the child’s progress in school. . . .”

After the divorce became final, L.D. started fourth grade at a new school. Her new school district decided to evaluate her for a disability. Taylor was provided with a copy of the school psychologist’s evaluation report. Taylor objected to the accuracy of the report and requested changes; in response, the district made some of the changes.

The district’s IEP team concluded that L.D. suffered from an emotional-behavior disability, prepared an IEP for her, and referred her to a private provider for a neuropsychological evaluation. Taylor asked to be a member of the IEP team, for access to L.D.’s educational records, and to have input into the content of the records. The district allowed Taylor to attend IEP team meetings, agreed to provide information about L.D.’s progress, and agreed to consider her information and input to the extent that it did not contradict input from L.D.’s father.

Taylor subsequently demanded an IEE. L.D.’s father objected and the IEP team agreed because they felt an additional evaluation would be harmful to L.D. Taylor filed a complaint and requested an impartial hearing, seeking an order compelling the district to substantiate its claim that L.D. was “seriously emotionally disturbed.” The impartial hearing officer dismissed the complaint on the grounds that because of the custody order, Taylor did not have standing to pursue a claim under the IDEA.

Subsequently, Taylor contacted the district to ask it to remove references to L.D.’s step-mother as L.D.’s mother, but the district did not reply to her. In addition, Taylor obtained possession of a letter that the district sent to L.D.’s father that stated that the district had removed some of Taylor’s letters from L.D.’s education file and at the father’s request it would not make further amendments to L.D.’s file. Taylor’s request for an impartial hearing to challenge the contents of L.D.’s records was dismissed as nonjusticiable because she had no decision-making rights regarding L.D.’s education.

Taylor filed a complaint in federal district court challenging these decisions. She sought several forms of relief, including (1) orders compelling the district to justify its disability determination, ensure the accuracy of L.D.’s records, and supply her with all of L.D.’s records and (2) compensatory and punitive damages. The district court dismissed the case on the ground that the divorce decree limited Taylor’s parental rights, and she thus lacked standing.

In an opinion drafted by then Judge Sotomayor, the Second Circuit affirmed in part and reversed in part. The court ruled that in the absence of a clear definition of “parent” in the IDEA, it would look to state law to determine who has parental rights. The court concluded that Vermont “does not allow natural parents whose legal authority to make educational decisions on behalf of a child has been terminated by operation of local domestic law to challenge an IEP determination.”

The court, however, reversed the district court’s decision denying Taylor the right to review L.D.’s educational records because the divorce decree gave her “the right to reasonable information regarding her daughter’s health and progress in school. . . .” Thus, the court allowed Taylor to pursue her records access claims.

3. But Not Everyone Who Is Not a Parent Is Barred from Exercising Parental Rights Under the IDEA

In Q.T. v. Pottsgrove School District, student H.P.-B. lived with her adult cousin, Q.T. Q.T. did not have legal custody over H.P.-B. Instead, physical and legal custody over H.P.-B. rested with her grandmother, E.E. Q.T., who made educational decisions on behalf of H.P.-B., filed a complaint with the District alleging that it denied H.P.-B. a FAPE. Q.T. lost before the hearing officer and the district court on the grounds that she was not H.P.-B.’s parent.

The Third Circuit reversed. The court found that Q.T. met the third definition of a “parent” under the IDEA as “an individual acting in the place of a natural or adoptive parent . . . with whom the child lives. . . . The court cited several facts that supported its conclusion: (1) H.P.-B. lived with Q.T. during the relevant time period; (2) Q.T. supported H.P.-B., assumed all obligations relating to H.P.-B.’s school requirements, and intended to do so continuously; (3) Q.T. received SNAP benefits on behalf of H.P.-B.; and (4) H.P.-B. was listed on Q.T.’s Department of Housing and Urban Development paperwork.

In response, the District argued that according to the IDEA regulations, Q.T. was not H.P.-B.’s parent, because a judicial decree granting an individual authority to act as a parent overrides any of the IDEA’s definitions of a parent, and a judicial decree granted E.E. legal custody of H.P.-B. Q.T. opposed this position, arguing that § 300.30(b) applies only as a “tiebreaker when multiple qualified ‘parents’ are competing with each other to act on behalf of the same child.” The court avoided deciding this issue on the ground that E.E. and H.P.-B.’s biological father, both of whom had joined in Q.T.’s federal complaint and appeal, did not dispute “Q.T.’s authority to act as a parent for purposes of the IDEA.”

The Third Circuit did not mention Taylor in its decision, leaving the rest of us to speculate whether its decision in Q.T. represents a circuit split. However, it appears that there is not, at least for now, a circuit split. Q.T. can be distinguished from Taylor because, as opposed to Taylor, Q.T. did not have to resolve a dispute between a custodial and noncustodial parent. Thus, it did not have to decide whether a noncustodial parent could override the wishes of a custodial parent. We await further development to see if the IDEA’s definition of a family evolves following Q.T.

4. And Sometimes, Children Are Their Own “Parents”

The IDEA authorizes, but does not require, states to transfer all IDEA rights to the student when they reach the state’s age of majority. A state, however, may not transfer parental rights if the child “has been determined to be incompetent under State law.” Thus, parents who are in a state where IDEA rights transfer to the child once they reach the age of majority, and who are concerned about losing their IDEA rights and/or worried that their child will not be able to exercise their IDEA rights sufficiently once they reach the age of majority, can seek a guardianship for their child to prevent their IDEA rights from transferring to the child.

The transfer of rights can create an anomalous situation in which a student is an adult under state law but nevertheless a “child” for purposes of IDEA eligibility. In J.S. v. New York State Department of Corrections and Community Supervision, the court added a layer of complexity: A “child” under the IDEA by being legally responsible for themselves can simultaneously be a “parent” for purposes of recovering IDEA attorney fees. J.S. was a 20-year-old prisoner in New York State, under whose law he was an adult. He continued to be eligible for a FAPE and all rights under the IDEA had passed to him under New York’s transfer of rights law. J.S. filed an impartial hearing complaint, prevailed, and sought attorney fees. The State opposed this on the grounds that under the terms of the IDEA only prevailing parents may recover attorney fees, and as a child under the IDEA, J.S. was not his parent and could not recover fees. The district court agreed, but the Second Circuit reversed. Relying on the IDEA’s third definition of a parent as an “individual acting in the place of a natural parent,” the court ruled that for purposes of the IDEA, J.S. was both a child with a disability and the parent of a child with a disability, and thus entitled to attorney fees.

Another question that has arisen under the transfer of rights provision is whether parents may seek reimbursement for private school tuition costs the parents incurred based on the school district’s failure to provide FAPE when the costs were incurred or relief was sought after the child reached the age of majority. Courts have approached this issue in different ways. In Latynski-Rossiter v. District of Columbia, the court found the parents did have IDEA standing to seek tuition reimbursement even though the child had turned 19. The court noted that the alleged IDEA violations began before the child turned 18 and sought to avoid the “perverse consequences” of finding that a parents’ right to tuition reimbursement should “suddenly evaporate” when the child turns 18. In contrast, in Doe v. Westport Board of Education, the parents unilaterally placed their child in a private school for her final year of high school, the parents’ rights transferred to the child when she turned 18 while she was still in high school, and the parents sought tuition reimbursement after the child turned 18. Citing the plain meaning of the transfer of rights provision, the court denied the parents’ IDEA claim. In a reassuring note to parents in this circumstance, however, the court ordered further briefing on claims the parents raised under Section 504 and the ADA, and subsequently found the parents had standing to proceed under those statutes.

C. Specific Parental Rights

1. Cautionary Tales

In addition to its value as precedent, Taylor is a valuable cautionary tale for attorneys who are drafting custody agreements. The divorce decree in Taylor did not specifically address the many parental rights the IDEA grants to parents and which parents held them. The result was time-consuming and expensive litigation that wasted resources that could have been utilized on the child. What follows are additional cautionary tales that show the importance of drafting clear and comprehensive agreements.

a. The Custody Decree Was Silent Regarding Educational Rights

In Fuentes v. Board of Education, the custody decree gave “exclusive custody” over the child, Mathew, to his mother. Mathew’s father was dissatisfied with the educational services Mathew was receiving and requested a reevaluation. The Committee on Special Education declined to reevaluate Mathew, and Mathew’s father sought a hearing to review the committee’s determination. After the hearing officer rejected his claim, the father filed a complaint in federal district court and lost; applying Taylor, the judge found that “under New York Law a non-custodial parent has no right to make special education decisions for the child. . . .”

On appeal, the Second Circuit concluded that New York State law on this point was not definitive and thus certified the following question to the New York State Court of Appeals:

Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decisions pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions.

The New York Court of Appeals modified the question and answered it “in the negative,” stating that “unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child’s education, a non-custodial parent has no right to ‘control’ such decisions.”

b. The Custodial Decree Is Open to Interpretation

In Navin v. Park Ridge School District No. 64, the divorce decree gave the mother “full custody and sole responsibility” for the child’s education but allowed the father “to inspect the children’s school records and to communicate with teachers, school personnel, and counselors, to discuss the children’s standing and progress and to participate in school activities.” Patrick (the father) was dissatisfied with his son’s IEP and sought an impartial hearing. The hearing officer dismissed Patrick’s claim because Patrick was the noncustodial parent and the district court agreed.

On appeal, the Seventh Circuit reversed and remanded. It found that if the divorce decree had eliminated all of Patrick’s parental rights, the district court would have been correct, but under the decree Patrick retained important rights, “including the opportunity to be informed about and remain involved in the education of his son.” The court stated that the real issue was “whether Patrick’s claims are incompatible, not with the divorce decree itself, but with [the mother’s] use of her rights under the decree.” It instructed the district court on remand to “[1] determine the precise nature of Patrick’s claims, [2] evaluate their status under the divorce decree, and [3] proceed to adjudicate those claims that Patrick retains under the decree and that are not trumped by [the mother’s] use of her own powers under that decree.”

On remand, the district court judge determined that the mother was satisfied with the child’s IEP and thus Patrick had no right to challenge it. However, because the divorce decree gave Patrick certain rights—including to access the child’s educational records and to receive notice of meetings to discuss the child’s dyslexia—Patrick could use the IDEA to invoke these rights even though the mother retained the right to make decisions about the child’s IEP. The court remanded the case to the hearing officer to determine whether the district violated his procedural rights.

c. A Shared Parenting Plan Gone Wrong, Parents Behaving Badly, and Vague Court Orders

In W.S. v. Wilmington Area School District, the parents agreed to a comprehensive “shared custody arrangement” that did not work out. After significant litigation, the state court issued an order that, although “not a model of clarity,” awarded “decision making as to school enrollment, medical and dental treatment for both of the children” to the father. Thereafter, the mother filed a complaint against the school district, asserting that it denied one of their children a FAPE. The mother won much of the relief she sought at the impartial hearing but filed a complaint in federal court; the school district argued that she lacked standing because the father had sole custody and retained the right to make educational decisions.

The court found that the law was clear, but the facts were not: “under Pennsylvania law, a parent with sole legal custody possesses the exclusive power to make educational decisions for the child,” but the various decrees issued by the state courts during the parents’ litigation were not clear about whether the father had sole custody. Rather than analyze them, the court found that the mother had consistently taken the position in the parents’ custody litigation that the father had full custody and that she was estopped from arguing otherwise.

The court made two observations that are relevant in considering the intersection of family law and special education in the context of divorce and custody proceedings. The first involves the behavior of the parents:

The Court concludes that Mother has acted in bad faith. In so doing, the Court does not question Mother’s personal motives in seeking to be engaged with W.S.’s education. The record is clear that both of W.S.’s parents are highly committed and involved with giving him the best possible education. But the record is equally clear that when they do not agree, all bets are off and they will use any means available—including the courts—to vindicate their points of view.

Second, the court reiterated the importance of ensuring that the child’s special education rights are not compromised as a result of their parents’ disagreements:

One final point. Critical to this exercise of the Court’s inherent, equitable power is the reality that W.S. will not lose the protections to which he is entitled under the IDEA. Holding that Mother is estopped here from asserting that she has custody of W.S. (and thus lacks standing to bring this suit) does not mean that no one can bring an IDEA claim on W.S.’s behalf. Rather, unless and until the custody arrangement is changed by a state court with the power to do so, Father will be able to sue if there is a legal issue with the education W.S. is receiving. Thus, the Court is satisfied that the important protections and procedures of the IDEA remain freely available to W.S.

2. A Cornucopia of Parental Rights—Extracted and Categorized

This list represents an extraction and categorization of the rights described in Part I and adds other rights that did not flow smoothly as part of the description. This categorized list appears immediately following the cautionary tales as a subtle hint to family law attorneys that instead of using broad, open-ended language about special education rights and running the risk of long-lasting litigation, they might better serve their clients by dividing parental rights in custody decrees clearly and comprehensively. So here we go. Under the IDEA, parents have the right:

1. To request:

  • An initial evaluation to determine if their child has a disability.
  • An IEE if the parent disagrees with a district evaluation.
  • A reevaluation “at least once every 3 years. . . .”

2. To receive:

  • Notice that the school district intends to evaluate their child and the evaluative tools it intends to use.
  • A copy of the evaluation reports and the district’s determination whether their child is eligible for special education and related services.
  • Notice of the time and place of all IEP meetings.
  • A copy of the child’s IEP at no cost.
  • Prior written notice that the school district proposes or refuses to initiate or change “the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child.”
  • A procedural safeguards notice—at the time of the initial referral for evaluation, once a year, upon the filing of a complaint, and on request—that describes a parent’s rights including an independent educational evaluation, prior written notice, parental consent, access to educational records, and the procedures relating to complaints and impartial hearings.

3. To consent to:

  • An initial evaluation of their child.
  • A reevaluation of their child.
  • The school district’s provision to the child of special education and related services.
  • The delivery of early intervention services to their child.
  • The excusal of a member of the IEP team from the IEP meeting.

4. To provide information to the school district that it must consider:

  • Information in connection with their child’s initial evaluation.
  • “Concerns” they have “for enhancing the education of their child.”
  • Evaluations they commissioned provided that the evaluations meet the district’s standards.

5. To agree:

  • On the time and place of all IEP meetings.
  • With the school district that a reevaluation can occur more frequently than once a year.
  • With the school district that a reevaluation within three years is unnecessary.

6. To participate:

  • As members of the team that develops the child’s IEP.
  • At an IEP meeting at a mutually agreed upon time and place.
  • At an IEP meeting with interpretive services if necessary to understand the proceedings.
  • In all meetings with respect to the identification, evaluation, eligibility determination, educational placement, and provision of a FAPE to their child, and to invite other people to attend such meetings and to have the district provide an interpreter if necessary.
  • In a resolution session within 15 days of the school district’s receipt of a complaint and prior to the commencement of the impartial hearing at which the parents and school district can discuss the case and attempt to resolve it.
  • In a mediation of their dispute with the school district.

7. To have access to information about their children pursuant to the IDEA, including all educational records relating to their child.

8. To have access to information pursuant to other federal and state laws:

  • The Family Educational Rights and Privacy Act (FERPA) requires school districts to allow parents the right to “inspect and review the education records of their children.” Under FERPA, a parent includes “a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.” The school district must give full FERPA rights to either parent, unless the school district receives evidence that “there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.”

9. To file a complaint with the school district about any aspect of their child’s special education.

10. To an impartial hearing to resolve the complaint.

11. In connection with the impartial hearing, to:

  • receive limited information disclosure not less than five business days prior to an impartial hearing;
  • “be accompanied and advised by counsel” and other trained or knowledgeable individuals;
  • “present evidence and confront, cross-examine, and compel the attendance of witnesses;” and
  • Receive a verbatim record of the proceedings.

12. To be reimbursed for:

  • Private school tuition if the school district did not provide a FAPE to the child prior to their enrollment.
  • Attorney fees if the parent is a prevailing party in a contested IDEA case, through an impartial hearing, court litigation, or both.

III. Gathering Information and Identifying Issues

A. Gathering Information

The following can serve as a list of questions to ask clients and documents to obtain to ensure a baseline of information to help identify issues and plan.

1. Does your client have children?

  • How many?
  • How old?
  • Where do they live?
  • With whom do they live?
  • Do they attend school?
  • Where?
  • Is it a public or private school?
  • If private, did the school district place the child there? Why?
  • If not, who placed the child there? Why?
  • Who pays the tuition?
  • Are any of your client’s children struggling academically, socially, or in some other way?

2. Does your client have a child with a disability?

  • What is the disability?
  • Did the child’s doctor diagnose it?
  • Has the child been referred for an evaluation by the school district?
  • Did the school district evaluate the child for a disability?
  • What was the result?
  • Did an IEP team meet to review the evaluations? Did your client attend the meeting?
  • Did the school district determine whether the child was eligible for special education? What was the result?

3. Did the school district prepare an IEP for the child?

  • What is the date of the IEP?
  • Is a meeting scheduled for the annual review of the IEP?
  • What special education does the child receive?
  • Where does the child receive it?
  • Does the child receive related services? What are they? Who provides them? Where?
  • How does the child get to and from school?

4. Are any IDEA legal proceedings pending?

  • If not, should there be?
  • If so, what is the nature of the proceedings?
  • What is the child’s placement during the proceedings?
  • Is this the last-agreed-upon placement?

5. Have there been previous IDEA legal proceedings?

  • When?
  • What was the subject matter?
  • What was the result?

6. Which of the following documents does your client have? (Get copies of all of them)

  • IEPs
  • Prior written notices
  • Evaluation reports
  • Consent forms
  • Procedural safeguard notices
  • Private medical reports
  • All documents relating to impartial hearings or court proceedings
  • School records, including report cards, progress reports, and disciplinary notices

B. Identifying Issues

This section is in two parts. The first part serves as a “special education checkup” to ensure that the rights of your client’s child with a disability are being served during the course of the proceedings. The second part raises issues relating to the negotiation of a custody agreement.

1. Special Education “Checkup”

1. Is the child receiving special education and related services? If not, should they be?

2. Relating to the child’s disability:

  • Does the child have a medically diagnosed disability?
  • Is the child struggling academically?
  • Is the child struggling socially, either at home or at school?
  • Did the school district conduct an evaluation?
  • What was the result?
  • Did your client challenge the result? What happened?

3. Is the child receiving special education and related services from the school district? If so:

  • What is the special education?
  • What are the related services?
  • Where is the child receiving them?
  • If in the public school, what is the location of the services?
  • If in a private school:
    • Who placed the child in the private school? For what purpose?
    • Who is paying the tuition? What is the annual cost of the tuition and other services?

4. Is the child receiving a FAPE?

  • Is the district providing all of the special education, related services, and accommodations required in the IEP?
  • Is the child making progress?
  • Is the progress appropriate in light of the child’s circumstances?

5. Is the child’s education in the LRE?

  • Is the child in the general education classroom?
  • If the child is in the general education classroom do they receive services and supports?
  • If so, are the services provided in the classroom or does the school provide them outside of the classroom?
  • If the child is not in the general education classroom, how restrictive is the child’s educational placement?
  • How much time does the child spend with general education students?
  • Is the child in their zoned school?
  • If not, how restrictive is the school the child attends?

6. Is the child in private school for reasons other than that the district is not providing a FAPE? If so:

  • Who has decision-making authority in the custody agreement about private school placement when FAPE is not an issue?
  • Who is paying/will pay the tuition or how will the amount be divided between the parties?
  • Who will review the child’s IESP each year and the delivery of services and have authority to file a state administrative complaint?

7. Is the child in a private school because the district is not providing a FAPE?

  • Who is paying/will pay the tuition?
  • If the parent is paying, did they request reimbursement from the school district?
  • What was the result?
  • If not, should they seek reimbursement?
  • Does the parties’ agreement provide for who will pay the tuition in this situation or how the amount will be divided between the parties if the school district is/does not provide reimbursement?
  • Are the IDEA rights of the parent who is paying/will pay tuition sufficiently protected in the custody agreement such that they can seek tuition reimbursement for private school tuition?

8. Is the child between the ages of zero and three years?

  • Is the child experiencing mental or physical delays?
  • Does the child have a diagnosed condition that has a high probability of resulting in a developmental delay?
  • If so, does the child have an IFSP that includes a description of the early intervention services the child will receive?

9. Is the child approaching the age of 16?

  • Does the child’s IEP include a transition plan?
  • Is the transition plan adequate?
  • Does the client have a plan for their child as they approach completion of their eligibility for public education either by graduating from high school or reaching the age of 21?

10. Does the parent have a child with a disability who is approaching the age of majority in their state of residence?

  • Does the state have an IDEA transfer-of-rights provision?
  • Does the family have a plan in place for addressing this transfer of rights?

2. How Should the Parents Divide the IDEA’s Parental Rights?

1. For an initial custody agreement or order:

  • Has one parent had primary responsibility for the child’s education?
  • Are both parents equally interested in the child’s education?
  • Are both parents equally capable of having responsibility for the child’s education?
  • Have both parents been involved in the IEP process for the child?
  • Are the parents able and willing to work cooperatively?
  • What is the child’s disability?
  • What are the frequency, duration, and location of the child’s medical and related services?

2. If a parent is seeking to modify an existing custody agreement or order:

  • What are the terms of the custody arrangement concerning educational decision-making?
  • Does the custody agreement take account of the child’s service and treatment schedule?
  • In what ways may the child’s need or special education services impact the current arrangement for decision-making or parenting time?

Appendix

Special Education Acronyms

  • DOE: The federal Department of Education
  • FAPE: Free appropriate public education
  • IDEA: Individuals with Disabilities Education Act
  • IEE: Independent Educational Evaluation
  • IEP: Individualized Education Program for a child with a disability
  • IESP: Individualized education services plan for children with disabilities in private school
  • IFSP: Individualized family service plan for infants and toddlers between the ages of zero and three
  • LEA: Local educational agency, known in the vernacular as a public school district
  • LRE: Least restrictive environment
  • MDR: Manifestation determination review
  • Part C: The section of the IDEA that provides funds to states to educate children with disabilities ages zero to three years
  • SEA: State educational agency, generally referred to as a state education department
    Entity:
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    Richard D. Marsico

    New York Law School

    Professor of Law and Director of the Wilf Impact Center for Public Interest Law at New York Law School. Thank you to Jean Marie Brescia as always for her insight and inspiration in writing this article and her review of an earlier draft; to the New York Law School student editors of the Family Law Quarterly, including Toni-Ann Kreisberg, Armine Parmakszyan, Sofia O’Shea, Alexandra Ogunsanya, Darryl Bobb, Sarah Silbowitz, and Theodore Richert, for their assistance with this article; and to Lisa Grumet for bringing this issue to fruition.