Custody Disputes and Children with Special Needs

Children with disabilities have a right to a Free Appropriate Public Education.  School districts have an affirmative obligation to seek out and serve students with disabilities.  Parents have the right to advocate on behalf of their child to obtain the type of support they feel is beneficial for their child.

But sometimes parents don’t agree with each other about what their child needs.  So what happens when there’s a dispute between the parents, and a dispute with the school district?

It is not uncommon for any parents to disagree about the nature and severity of a child’s disabilities, or about what kind of educational program would be best for their child.  Preconceived ideas about disability, personal expectations, a parent’s own neuro-emotional profile, and incompatible parenting styles can be factors in these disagreements.

Disputes involving children with special needs are common in child custody cases.  When parents are separated, and there is a dispute over child custody, disagreements can turn into thorny conflicts. This can result in a child slipping through the cracks, and not getting the help or support she needs at school.

Custody Disputes can impact the IEP process

Unfortunately, it is also not uncommon for parents in dispute to bring the dispute to the IEP process, forgetting or ignoring that the IEP process must be about the child’s needs and not the parents’.   Sometimes, a pattern of one parent blaming the other parent can emerge, further obscuring the child’s needs.  This can result in a delay in obtaining services for the child, or worse, the educational planning process being taken out of the hands of one parent or even both parents at the court’s discretion.

Parental consent is required for a school district to be able to implement the initial (first) IEP for a child, or to effectuate changes to an existing IEP.  Basically, that means getting the parent’s signature on the document. See 20 U.S.C. 1414(a)(1)(D).

One parent’s consent is enough to effectuate an IEP, in the absence of any court order that mandates both parents’ consent; conversely, one parent’s refusal to consent can stop the IEP process in its tracks until (1) the parents reach agreement about the IEP; or (2) the court adjudicates the dispute between the parents.

In California:

  • Parents can consent to components of IEP, need not consent to the whole thing. Educ. Code §56346(e)
  • Parents can consent to implement an IEP, even if they disagree that the IEP completely meets the child’s needs and they want to keep trying to make it better.
  • Consent to an IEP cannot be withdrawn or conditional: once there is consent, and the IEP is implemented, it will stay in place when a conflict arises.  See “stayput” provisions, 20 U.S.C. §1415(j).

Disputes between parents over what the child needs will not be resolved in “due process.”

The Office of Administrative Hearings and the administrative law judge who presides over a special education hearing does not have jurisdiction over family law disputes.  If the custody/decision-making dispute results in the district not being able to provide any services to the child, the District can file for due process, to protect itself from liability for doing nothing.

In family court, it is Parent v. Parent; special education law presumes that in a dispute, it’s Parent v. School District.  When the two areas of law overlap, it’s Parent v. Parent v. District:  a three-way dynamic with many more possible opposing and collusive relationships.

Therefore, it’s important to insulate (as much as possible) the IEP process from conflict between the parents.  IEP should not be a battlefield.

Why is it fundamentally important that the IEP process is not a battlefield?

Because the IEP process is about the child, not the parents. Parents battling each other over the IEP process

  • Takes the focus off the child and their needs
  • Gives the school district the opportunity to take advantage of the conflict by
    • Playing the parents against one another, which escalates the conflict (e.g., asking the parent that “agrees” with the district to sign the IEP to the exclusion of the other parent); or forcing the parents to bring the matter to family court and thereby delay the IEP services to the detriment of the child
    • Damaging either or both parent’s credibility
    • Being able to negate the parent’s effectiveness as an advocate for the child.

Carefully constructed custody orders prevent disputes that threaten the child’s progress at school.

Custody orders can:

  • include designation of who holds education rights; that is, an explicit allocation of legal custody over educational decisions to one parent or the other, or to both.
  • include a dispute resolution process, or “tie breaker” provision, in case of a disagreement.
  • when parents live in different school districts, designate where the child will attend school.
  • designate who pays for experts’ consultation, assessment and reassessment.
  • designate who pays for the special education attorney.
  • include long-term planning (including special needs trusts, conservatorships, and assessing the need for continued financial support) for adult children with disabilities.

These matters are best resolved outside the courtroom.  Mediation, collaborative law, and even working with a private judge, can help (1) reduce the underlying conflict; (2) provide the specificity of orders that are needed in this context; and (3) truly keep the focus on the child’s best interest by honing in on their needs.

And to make sure that the child’s needs are properly considered and rights are protected, consult with a special education attorney, who can bring experience and information into the process.








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