Standard Legal Custody Orders and the Disabled Child: A Recipe for Battle

 By Melissa Hatch

Jack and Diane fell in love, got married, and had a child, “Bobby.” Bobby attended public school and received special education services through an individualized educational program (“IEP”). Because Bobby was an eligible disabled child with an IEP, his local school was obligated to offer and provide him a special education program that comported with federal and state law. The public school also had to ensure compliance with Jack and Diane’s rights as parents of a disabled eligible child.

Then, for various reasons, Bobby’s parents divorced. Jack and Diane agreed to joint legal and physical custody of Bobby.  Their custody order contained standard verbiage that they shared equally in making educational decisions for Bobby. 

Bobby had difficulties adjusting to Jack and Diane’s divorce. He demonstrated increasingly inappropriate behaviors at school. His IEP team recommended an updated assessment of Bobby’s behaviors at school – a legal requirement for developing an appropriate IEP. Diane signed her consent for the offered assessment, but Jack refused to give his consent.

 The school assessed Bobby with Diane’s consent, but without Jack’s consent. They held an IEP team meeting to review the assessment and the IEP team recommended additional services to address Bobby’s behavior. Diane consented to this new IEP. Jack informed the IEP team that he would not consent to the new IEP; he then completely revoked consent to Bobby’s IEP. As required by law, the school promptly exited Bobby from his special education program, and placed him in a genera, education classroom without any of his IEP services.

Bobby fell apart at school without the benefit of his IEP and special education services. The school tried in vain to work with Jack and Diane to get Bobby back into special education. But Jack and Diane could not agree on Bobby’s education. The school informed Jack and Diane that they should go back to family court and work it out. While Jack and Diane continued their disagreement, Bobby continued his downward spiral.

Educating The Disabled Child In The Public K-12 School

The Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”) is the reauthorized federal law that governs how states and public education agencies receiving federal funds are to provide early intervention services, special education services, and other services to eligible children with disabilities.

The IDEA requires that public schools provide an eligible disabled child with a free appropriate public education (“FAPE”).  To meet the legal standard of developing a FAPE for each eligible disabled child, public schools must adhere to numerous procedural and substantive legal requirements. One of the greater requirements is to ensure the rights of parents of eligible disabled children.

The IDEA And Parental Rights

Among the IDEA’s most important procedural safeguards are those that protect the parents’ right to be involved in the development of their child’s IEP.  Nevertheless, nothing in the IDEA overrides the state’s allocation of authority as part of a custody determination. (Navin v. Park Ridge School District (7th Cir. 2001) 270 F.3d 1147.) In the case of divorced parents, the parental rights established by the IDEA apply to both parents, unless a court order or state law specifies otherwise. (See 71 Fed. Reg. 46568 (2006).)  The Family Code requires the court, when making an order of joint legal custody, to specify the circumstances under which the consent of both parents is required, as well as the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. (Family Code §3083.)   When developing joint legal custody orders, standard verbiage requiring parents to share equally in making educational decisions for their child, is typically used. In most circumstances, this works fine. In the case of a disabled child, the inclusion of standard language, without any limitation, can be problematic. 

Continue reading – January issue of  CITATIONS (page 16)

Melissa Hatch has over 13 years of combined experience in re p re s e n t i n g public school districts in special and general education law. She recently opened her practice in Ventura, where she practices family and elder law, and continues to represent public school districts in education law.

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