Stuck in the Middle: Child Custody and Special Education
October 2024
Public schools have countless educational and administrative tasks to handle each and every day. Their staff often wear many hats in order to run a school and teach a diverse group of learners to meet state and federal education standards. Public schools are required to keep detailed daily records of student attendance and absence, keep their campuses safe and students engaged, all while teaching manners, respect, and civility. They also interact and communicate with parents, families, and the community, and provide services and resources for the benefit of their students, including those students with disabilities. Sometimes, school staff are involuntarily pulled into child custody disputes between parents. Restraining orders and child custody orders can be confusing to understand. How are these orders related to the provision of special education?
Court orders issued through a family law court resulting from a divorce or legal separation, or a domestic violence or paternity proceeding can have a ripple effect on education and change the way the school staff interacts and communicates with parents. At times, family disputes spill over into the school setting, and effectively force the school personnel to become involved in disputes over educational matters involving children, such as special education assessment and consent to specialized services under an individualized education program (IEP).
In California, custody orders deal with two types of child custody: legal custody and physical custody.
- Legal custody refers to the right and responsibility to make legal decisions relating to the health, education and welfare of a child; and
- Physical custody refers to the parent with whom the child resides primarily (except for specific periods of visitation with the other parent as a court order stipulates).
Matters involving a child’s education, including a request for special education assessment and consent to an IEP, fall under the scope of legal custody. Generally, unless the court order specifies that one parent has sole legal custody or there are specific circumstances where one parent holds the sole right over a specific type of legal decision, then both parents share legal decision-making power for their child, and both should be provided with notices and documents related to the student’s IEP. The following California Family Code definitions may help schools clarify parental custody and legal decision-making rights when they are presented with a court order:
- Family Code section 3002: “Joint custody” means joint physical custody and joint legal custody;
- Family Code section 3003: “Joint legal custody” means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child;
- Family Code section 3004: “Joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents;
- Family Code section 3006: “Sole legal custody” means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child;
- Family Code section 3007: “Sole physical custody” means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation; and
- Family Code section 3083: In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.
It is sometimes impossible to get joint consent for special education assessment and services from both parents who share legal custody, especially if they are on less-than-friendly terms and have widely different opinions on their child’s educational needs. However, Family Code section 3083 provides clarification that allows one parent to give legal consent for special education assessment and services, provided there are no court-specified exceptions that require both to consent.
For ongoing parental custody disputes involving students with disabilities, the school district should seek professional legal advice to ensure they are in compliance with a child custody order, the provisions of the Individuals with Disabilities Education Act (IDEA), and related California law regarding child find and each parent’s right to educational records, notices, and IEP meeting attendance.