Divorce and Special Education

If you are the parent of a child who is receiving services under a 504 plan or IEP, you have a vested interest in making sure there is continuity of service and educational progress even when you are going through a divorce. Given the legal complexities of our special education system, it is vital that parents going through a divorce understand how their custody battle can affect educational services.

Since IDEA (Individuals with Disabilities Education Act) and Georgia law state that the primary decision makers when it comes to a child’s education are the parents, if you intend on having a say in your child’s special education decisions, you need to fight for that right and make sure it is spelled out clearly in your court documents.

Read more about special education law and how your divorce can play a big part in which parent makes educational decisions for your child moving forward.

Who Has Legal Custody?

When we speak about custody, there are two kinds: physical, which involves where the children will reside, and legal, which concerns who gets to make significant legal decisions in areas such as medical care, education, and religious upbringing.

When deciding legal custody, the court considers each area (medical, school, religion, etc.) and assigns either joint or sole custody. If joint legal custody, the parents share decision-making ability for that issue. If sole legal custody, one parent gets to be the ultimate decision maker for the child.

When it comes to education, many parents are awarded joint legal custody. With this arrangement, both parents have rights including:

• Advance written notice of any 504 or IEP meetings
• Ability to sign IEP paperwork and receive a copy
• Regular progress reports from the school
• Due process rights in case there is a disagreement over appropriate services
• Ability to provide feedback and approval rights for initial implementation of any specialized instruction plan

If a parent has sole legal custody in education matters, then they are the only parent with the right to participate in the special education diagnostic and planning process. A parent with sole legal custody has a responsibility to inform the school and provide a copy, upon request, showing the court decision to award sole custody. They will be the only parent dealing with school administration and special education staff moving forward.

Consent For Educational Services

Parents may not be aware that, even in cases of joint legal custody, the school is only obligated to get the signature of one parent for approval and implementation of an IEP or 504 plan. This can lead to conflict if both parents cannot agree on a course of action, but one parent goes ahead and signs.

If two parents share joint legal custody, it is very important that they try to reach some consensus about what they want to see in an educational plan. Otherwise, the parent with the tie-breaking authority on that issue has the right to have the final say.

Having an experienced, caring family attorney who has knowledge with divorce and special education law can make a huge difference, even with joint legal custody. If there is a situation where two parents with custody cannot resolve an educational question, you may need an attorney to step in.

Family Matters Law Group has been helping clients in Henry, Clayton, and Fayette counties, as well as the greater Atlanta metro area, with educational issues for many years. We fight hard for the best interests of the child, especially when there are special needs. Contact us today -- we’re ready to hear your story!