Procedural safeguards under the Individuals with Disabilities Education Improvement Act (IDEIA) provide parents a meaningful opportunity to participate in the decision-making process.  Parental consent and participation is required for evaluation, eligibility and initial student placement. Who is the parent for purposes of “parental consent?”  This question is not so easily answered.  There is no requirement under the IDEIA that consent be provided by BOTH parents.  Typically and practically, school districts require the signature of only one parent.  To comply with parental due process rights, the school district must determine the parents’ status.   Specifically, are the parents divorced, separated or never married?

It is not enough to merely inquire.  School districts should never take the parent’s word regarding this issue without documentation to support the parent’s position.  The best practice is for the school district to obtain copies of any custody orders, divorce decrees or parenting agreements that may identify who is responsible for making legal educational decisions regarding the student.  The school district should verify that the document is current by consulting with the parents’ legal counsel or court records.  If there is no court order which identifies the parent responsible for making the legal educational decisions for the student, all due process rights must be given to both parents.  It does not make any difference if the student resides physically with one parent more than the other.  Additionally, if one parent has sole legal custody, only that parent makes IDEIA decisions, even if the student lives for a significant amount of time or full time with the other parent.

Although the Family Court determines which parent has the authority to make legal educational decisions, even a Family Court Order may pose complications for a school district.  Granting a parent sole legal custody permits that parent full due process rights under the IDEIA.  The non-custodial parent, who may still have visitation or physical custody rights but no legal rights, no longer has the right to consent to evaluations, IEP and IDEIA matters or to request due process.   “Joint legal custody” poses the greatest challenge to school districts as both parents have all the rights granted to any parent under IDEIA.  In this scenario, both parents must agree with the educational decisions regarding the student.  While a Family Court Order or a custody agreement might specify how a conflict is to be resolved if both parents do not agree, this is not a common practice.  The school district is often left with the challenge of engaging both parents in reaching an agreement regarding the student.

While it is tempting to favor a parent who agrees with the school district’s position or is more active in the student’s education, irrespective of a custody order, this can be legally dangerous.  In the Rockaway Township Board of Education, the Administrative Law Judge (ALJ) held that major decisions concerning special education shall be “….agreed to by both parents, bearing in mind their custodial arrangement”.  The mother agreed with the special education program proposed by the school district, and the school district, relying on her consent, began implementing the program.  Father filed for due process, stating that the Divorce Decree required both parents to consent.  Meanwhile, during pendency, the parents returned to Family Court, and to the frustration of all concerned, the Family Court concluded that  “… the judgment of divorce speaks for itself” and provided no further guidance.  The ALJ then found that the father had standing to file for due process under the express terms of the Divorce Decree, requiring both parents to consent to classification and services under the IDEIA.  Consequently, the ALJ ordered the school district to return the student to his mainstream classes, but suggested that the school district could file for due process to classify the student.

In North Allegheny School District vs. Gregory P. and his parents, MBM represented the School District in a situation where the student’s parents had a shared custody arrangement with only the mother residing within the District.  The parties agreed on all aspects of the student’s educational program except for transportation.  The father requested that the District provide transportation for Gregory from father’s home when Gregory resided with him on alternating weeks.  When the District refused, the father requested due process.  The Hearing Officer ruled in favor of the District but the Special Education Appeals Panel reversed.  This required the School District to file an appeal to Commonwealth Court.  The Court determined that the additional requested transportation services were not to address any of Gregory’s special education needs but were only intended to accommodate parents’ particular domestic shared custody arrangements.  The court noted that the hardships of such shared custody arrangements fell equally on students who had no special educational needs as on those students who did.  The court determined that mitigating such hardships was not the purpose of the IDEIA which only required the District to provide an appropriate education, transportation between his residence and his school and additional transportation or other services where needed to address his educational needs.  This did not extend to accommodating parents’ lifestyle preferences and personal needs.

When dealing with special needs children whose parents are either divorced, separated or never married, the school district should always request the Court Order for custody arrangements.  Unfortunately, Custody Orders are not always prepared with an eye towards the student’s educational needs.  In many situations, districts will experience issues in resolving the students’ special education needs whose parents are not in agreement where both parents retain their parental rights to make educational decisions.  However, it remains the school district’s responsibility not to violate either parent’s rights and to verify and implement the Custody Court Orders and parental custody agreements to the extent possible.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.