Don’t Let a Complicated Divorce Complicate the ARD Process

Divorce often complicates everything, including the special education process. Parents of students with disabilities are provided certain rights under the IDEA, but what happens to those rights when parents are divorced? To ensure compliance with the IDEA, school leaders need to fully understand the rights of each parent to participate in their student’s special education program.

Biological and adoptive parents are typically considered “parents” with the right to make educational decisions for their children under the IDEA. When the parents of a student with a disability are divorced and share custody, both parents generally hold parental rights under the IDEA. These parental rights include notice of ARD (IEP) meetings and attendance at ARD meetings, in addition to making educational decisions and filing a State or due process complaint if a dispute arises.

But the rights of both parents are not always intact, so ARD Committees must pay attention to custody arrangements and any applicable judicial decrees or orders. If a parenting plan or court order identifies a person to act as the parent of a child or to make educational decisions on behalf of the child, that person is considered the “parent” under the law. Also keep an eye out for protective orders, which may limit a parent’s involvement in the special education process. In the absence of a court order or other legal document assigning educational decision-making rights, you can generally presume that both parents hold all legal rights regarding the student.

Now for the tricky part. For parents with joint custody or joint managing conservatorship, each parent generally has independent rights to make educational decisions on behalf of their children. The evaluation team and/or ARD Committee, however, only needs to obtain consent from one parent to initiate an evaluation or initial special education placement, and generally only needs one parent to attend an ARD meeting. So, what happens if parents with equal rights to make educational decisions disagree? In rare circumstances, a court order may require both parents’ signatures for consent. But in most cases, one parent can provide consent and the other can revoke it if they disagree. And for many team decisions (like goals, related services minutes, and even placement), parental consent is not required at all. To navigate these disagreements, first, be sure to listen to and consider the input of both parents. Both parents have the right to participate and engaging with both perspectives may help the team reach a consensus or compromise. Second, remain focused on what the student requires to receive FAPE, which is always the ultimate responsibility of districts and schools. Finally, provide prior written notice to both parents.

What if only one parent has custody of the student, does that mean that the other parent does not have IDEA rights? Not necessarily. Consider whether a judicial decree or order explicitly assigns the sole authority to make educational decisions on behalf of the student to the custodial parent. This arrangement is more common, but sometimes the judicial decree or order may indicate that the noncustodial parent shares educational decision-making rights. Additionally, without a court order indicating otherwise, do not assume that the noncustodial parent has lost the right to access educational records or the right to attend meetings. Even if one parent has the sole right to make decisions about a student’s education, ARD Committees should still provide the other parent notice of ARD meetings and allow them to participate in ARD meetings. In the event of a disagreement, however, only the parent with decision-making rights has the authority to provide and revoke consent and to file a complaint.  

Divorce can be complicated and navigating ARD meetings with divorced parents can be especially tricky. For questions relating to parental rights of divorced parents during the ARD process, please contact the authors of this post or any member of the Thompson & Horton Special Education Team.