IEPs and Divorce

Sometimes the ‘happily ever after’ just isn’t. Things change and you find yourself divorcing, and rebuilding a life you thought was forever. It’s traumatic for both kids and parents. To make a complex situation even more complicated, if your child has an IEP, there are extra considerations in a divorce.

Who gets say over an IEP when parents are divorced? What if the parents don’t agree on a course of action? To answer all of that and more, I’ve enlisted the help of a lawyer friend, Penelope Boyd, who co-wrote this with me. Penelope is a Family and Education Lawyer in West Chester, PA. She practices in PA, so please make sure you double-check your state’s regs for specifics.

divorce custody IEP

IEP Issues and Divorce

Before we get into divorce and custody explanations, it’s important to have the right mindset. And that is, for the most part, these are family law issues, not IEP issues. You should look to your family/divorce attorney to help you with this, do not expect the school to engage or intervene in divorce and custody issues. Even if parents and schools are in disagreement over an IEP or 504, if it involves deciding which parent gets to decide, that is a family law issue, not anything you will find defined in IDEA.

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Custody Decisions by Parents

Custody issues can sneak up on parents. School districts might ask to see custody orders as part of enrollment or assigning bus seats. Doctors want parents with legal custody to sign off on medical procedures. Custody is a concept that everyone thinks they know and often assume they have, but occasionally, it comes up and it is important to know where you as a parent stand.

Custody is an issue in:

  • School enrollment
  • IEP participation and agreement
  • Permission slips
  • Agreement to medical procedures
  • Child support
  • Participation in religious schools

What you need to know as a Pennsylvania parent:  Custody is the legal term that describes your rights to your child. If you    In Pennsylvania, the statute divides custody into legal custody and physical custody. A parent may, and often does, have both.

  • Legal custody is the power to make serious decisions about your child. Important decisions such as medical care, education, and religious upbringing fall within the area of legal custody. It is usually shared by both parents, whether they are living together or not. When both parents have legal custody, they must agree on a course of action and are often asked to sign consent forms together to memorialize the consent. Legal custody between married parents as well as parents who do not live together is presumed unless there is a court order that says otherwise.

What is physical custody?

  • Physical custody is the right to have possession of the child. Physical custody is divided in as many ways as there are families. Physical custody can be “sole”, “primary”, “shared” or “partial” in Pennsylvania.
    • Sole physical custody is where one parent has the child all the time, and It may or may not include visitation with the other parent. 
    • Shared physical custody is where the parents share physical custody equally. Some families divide time week-on, week-off and others have a schedule that distributes time evenly throughout the week.
    • Primary physical custody is where the child lives with one parent more than another.
    • Partial physical custody of a child is the right to have the child live with you less than half the time. This means the other parent probably has primary physical custody

What happens if the parents disagree?  Parents do disagree and decisions about the child’s health care, education, and religious upbringing are often the source of tension in co-parenting. Parents often disagree on how much time they have with their children. Parents may try to convince the other parent to their way of thinking, and others may try co-parenting counseling to better communicate with each other. When informal means do not resolve the conflict, parents may turn to the courts for a decision.

What IDEA says about Decisions and Divorce

First, know that IDEA does not address this. This is why you should seek assistance from a Family Attorney so that decision-making is clearly defined in your divorce and custody arrangements.

IDEA only makes mention of divorce in one area, and that is student records. Regardless of the custody arrangments, both parents are entitled to the student’s records per FERPA. IDEA also defines “parent.”

IDEA 300.30 Parent.

(a) Parent means—

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  • (1) A biological or adoptive parent of a child;
  • (2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent;(3) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State);
  • (4) An individual acting in the place of a biological 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
  • (5) A surrogate parent who has been appointed in accordance with §300.519 or section 639(a)(5) of the Act.

(b) (1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.(2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (4) of this section to act as the “parent” of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the “parent” for purposes of this section.

And here is what IDEA says about parents inspecting a child’s records.

(c) An agency may presume that the parent has the authority to inspect and review records relating to his or her child unless the agency has been advised that the parent does not have the authority under applicable State law governing such matters as guardianship, separation, and divorce.

Remember your IEP Communication

Remember that regardless of custody arrangements, your Ex has access to your child’s records. It doesn’t say that they have to use them for IEP or educational purposes. Do you send emails to the school that you now regret? Just one more reason to wait 24 hours before sending an email, particularly after a serious incident. Your Ex can get those emails (and in some cases, the school will be only too happy to provide them!) and use them against you in custody proceedings. Read more tips on Email Communication with your IEP team, so your old emails don’t haunt you.

IEP Disputes with your Ex

Just like I advise parents to get everything spelled out in the IEP, you should get everything spelled out in your divorce and custody arrangements. This should also include whether any future spouses or boy/girlfriends can attend IEP meetings, as that is an issue I see come up often in the Facebook group.

IEP teams can, and sometimes will use parents against each other during an IEP dispute. It’s important that above all else, you remain child-focused during the IEP process. This is not the time to be right or “win” a dispute with your spouse, to the detriment of the child.

Over the years, I have seen all kinds of stuff with IEP teams. Things like “forgetting” to invite the non-compliant spouse. Only sending certain information to one parent. You and your Ex must be united in this.

But, if your Ex is bringing a girlfriend to meetings or something else you disagree with, do not expect the IEP team to intervene. If a parent has invited someone, they are invited. You must get it addressed via family law and spelled out in your custody arrangement. It’s not fun, I get it.

But the IEP team has no obligation to mediate in this area, nor will they. If you put them in an uncomfortable situation, it may affect your relationship.

If you and your Ex cannot agree, or meetings are not working with both of you there, consider a facilitated IEP meeting.

To recap:

  • Get your custody arrangement and educational rights clearly defined.
  • Submit your request, along with the documentation that you have educational decision making power, to the IEP team.
  • Then, if they do not comply, it becomes an IEP/FAPE issue, and not allowing you meaningful participation in the process.

Good luck!

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