Divorce and Special Education Law In Massachusetts
Red flags for family law attorneys when handling divorces with special needs children in the family.
Many Divorcing Couples have children with special needs: do you know how this will impact the divorce?17.4 percent of Massachusetts children receive services under the Individuals with Disabilities Education Act (IDEA)(as of 2011). When divorce happens to a family with a special needs child, both the divorce and the special education are implicated. Family stress and household changes affect learning and performance for all children, but especially those with special needs. Couples must usually renegotiate the way they make decisions for their child, both for medical needs and educational needs. The IDEA requires only one parent with legal custody to "sign off" on school decisions regarding special education: that is, only one parent need agree with the school's plan for placement and services. Under the IDEA, the first parent to sign or reject an IEP and return it to the school may have the say. Some times, the school has a relationship with the other parent and will opt to consider that parent's views as well. However, when the school receives one parent's signature, it is not required to inquire as to whether the parent has decision-making authority, or will be implementing supports for the student.
Joint Legal Custody Many Not Protect One Spouse From the Other Making the Special Ed DecisionsMost parents have joint legal custody, and thus have agreed to share education decisions for their children. Under the IDEA, both parents may receive progress reports, notice of team meetings and be members of the IEP process. However, even if the parents have joint legal custody, under the IDEA, only one parent signature is needed to implement the school's special education plan. Where a special needs child is involved, the divorce decree may address this. It may identify one parent as the special education decision maker, or it may provide that the parents must make best efforts to agree to a joint decision, with a process to address disputes. In contentious circumstances, a concerned parent may notify the school in advance of his or her special education decision-making rights.
Post-Divorce, Other Issues May Arise for Divorced Parents of Special Needs ChildrenVariation from the base calculation for child support is often appropriate, where the child requires supports such as tutoring and educational aids. Support may continue beyond age 23 for some. The child's special education needs must be re-evaluated every three years under the IDEA. The parents are entitled to seek a reevaluation every year. This may result in a change in the child's diagnosis, assessment and educational needs. This could result in placement at a school in another community, perhaps closer to the non-custodial parent. Expenses may increase also, and a modification of custody and support may be required. Under the IDEA, children are entitled to receive special education services until the age of 23, when appropriate. When a severely disabled child reaches 18, it is time to consider legal guardianship to address ongoing decision-making powers for the child. When a family experiencing divorce is also facing issues concerning special education services, it may be appropriate to retain an education lawyer such as myself to advocate for the student.