Special Education Issues in Family Law

Presented by : Ilene Young, Esquire & Grace Deon, Esquire

Custody

Two main divisions: Physical and Legal Legal Custody = Decision-making authority

May be viewed as a bundle of rights

Physical Custody & LEA

The residence of the primary physical custodian is the child’s residence. Query: In a split physical custody scheme,

how is residence determined?

Custody Orders

Standard custody order has ‘shared legal custody’ Provides equal decision-making authority

Other possible schemes Sole legal custody Sole legal custody for a particular purpose

such as educational decision-making

IDEA Legal Definitions

A ‘parent’ is the holder of rights under IDEA. A parent with legal custody, whether shared

or sole, has the right to act as ‘a parent’ for legal purposes unless the custody ORDER specifies otherwise.

Legal Standards for Custody

Best Interests of the Child Defined as the “child’s physical, intellectual,

moral and spiritual wellbeing.”* Best standard contrasts with IDEA standards

≠

Family Court

IDEA and entitlement issues are poorly understood by most family court judges and attorneys. Attorneys must educate and plead the law Expert testimony is needed School district and other

entitlement documents

need interpretation

IDEA Rights at Issue in Custody Law

Under IDEA, ‘a parent’ may agree or refuse an LEA proposal, bring due process claims, or exercise other rights. What if they can’t agree or undercut one another?

Recourse to family court may be required to referee disagreements

or change the legal custody

scheme.

Custody issues in special education practice Residential placement of a child may impede

the physical custody rights of the non-primary parent.

Relocation of a parent from district to district may trigger a waiver of hard won district obligations.

Relocation of a parent and/or child from state to state may require advanced court approval.

Custody Rights at Issue in Special Education Law One parent with shared legal custody may

bring a due process action despite opposition from the other parent. ODR 9743 (08-09) Hearing Officer held that

only the Mother could decide how to use the compensatory education award.

Representing Single Parents in Special Education Law Issues and Risks

Securing expert testimony Settlement and waiver authority Controlling information

Strategies Obtain and review custody order & docket Obtain written agreement of other parent Indemnity clause Obtain necessary releases for expert prior to

start

Special Education Issues in Child Support Three categories of issues in child support:

Income calculation Duration of obligation Expenses

Special education law may effect all three

Income Calculation Issues

Treatment of Education Settlement ‘Trusts’ Special needs trusts are not counted as

income for purposes of child support calculation

Query: Education Settlement Trusts: Most trusts arising out of litigation or settlement of minor’s claims already approved under Pa.R.C.P. 2039

Education trusts may require explanation

Duration of obligation

Child support in Pennsylvania is paid until age 18, or high school graduation unless the child is an “unemancipated adult child.”

Test for emancipation: Whether the child, upon reaching the age of

majority, “has a mental or physical condition that prevents the child from being self-supporting.”*

Contrast with IDEA

transition standard.

Expense issues

Private school issues: Expenses must be “reasonable” Residential placement may effect support

amounts based on primary residence calculations.

Third-parties may have standing for reimbursement from the payor

parent.