Document Type

Article

Publication Date

2024

Abstract

The Individuals with Disabilities Education Act (IDEA) requires participating states to provide a free appropriate public education (FAPE) to 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 while at the same time acting as parents for their children. 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 article provides a survey of the IDEA, focusing on the role, rights, and expectations of parents of children with disabilities under the IDEA. It examines the intersection between the IDEA and family law by describing the IDEA’s statutory language and federal court decisions that define a “parent” for purposes of exercising parental rights under the IDEA and the importance of a state’s family law in determining who is a parent for exercising IDEA’s rights. The article then creates an “action plan” for family law attorneys representing a parent of a child with disabilities in a divorce or custody dispute to ensure that their client’s rights are protected. The plan 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.

Comments

The Intersection of Special Education and Family Law: Thoughts for Family Law Attorneys in Divorce and Custody Cases, 57(2 & 3) FAMILY LAW QUARTERLY193-229 (2024).

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