by Liliana Yazno-Bartle, Esquire*

Special education issues become relevant in a custody case when there is a child who has a disability.  Problems arise when parents are not on the same page regarding educational decisions.  Custody Orders need to be crystal clear as to who has the right to make educational decisions.  Specifically, the Order should state who has the right to request a special education hearing; who can execute consents to evaluate, program plans, or placement approvals.

1. What Type of Disability does the Child Have?

1. Who is eligible for special education services under the IDEA?

   A child with a disability (ages 3 to 21) who has a physical, mental or emotional impairment and who, by reason thereof, needs special education and related services.  20 U.S.C. § 1401(3)

2. What types of disabilities are covered under IDEA?

   Recognized disabilities include:

   1. Autism/Pervasive developmental disorders
   2. Mental Retardation
   3. Specific Learning Disabilities
   4. Serious Emotional Disturbances
   5. Physical disabilities
   6. Other Health Impairments
   7. Deafness/hearing impairments
   8. Neurological impairments
   9. Blindness/visual impairments
   10. Speech and language impairments

2. Age: The age of the child will help determine the agency responsible for providing services to that child.

1. Birth to 3: Early Intervention services for children birth to 3 are operated through the County Mental Health/Mental Retardation System under the DPW.
2. 3 to 5: Early Intervention pre-school services for children ages 3 to 5 are usually provided by Intermediate Units rather than by local school districts.
3. 3 to 21: The responsibility for providing each eligible child age 3 to 21 with a FAPE and all related procedural protections rests first with the child’s local educational agency (LEA).

3. What school/school district is child attending?

Determining the specific school and district will help the Domestic attorney ascertain the source of funding responsible for the educational needs of the child.  Is the child attending a private school?  Who is funding the placement?  If the child is attending a private school, how much is the tuition?

4. What services/therapies does the child need?

“Related Services” are those services needed to help the child benefit from or gain access to the education program.  These can include transportation to and from school, or around the school building; support services such as physical, occupational or speech therapy; school health services; and other services the child may need to benefit from or have access to the school program. The services of a medical doctor are usually not included, except where necessary to determine the child’s disability or the type of program or services the child needs; however, school health services are available.  Questions to ask regarding the related services required:

1. What type(s) of related service(s) does the child need?
2. How often should the child receive the service(s)?
3. For how long should the child receive the service each time it is provided?
4. What is the estimated cost of the services?

5. Fiscal Considerations: Under IDEA, every eligible child with a disability is guaranteed a “free appropriate public education.”  All special education programs and related and supportive services needed by the child to receive an appropriate program must be provided without cost or financial liability to the family.  School officials may not ask a family to use their private insurance to pay for an evaluation or service if there is a cost involved, an annual or lifetime limit to benefits under the policy, or if using the policy could result in a rate increase.  Knowing who will be financially responsible for the required services may prove useful when completing the financial disclosure sheet in support cases.

6. Standard Clauses in Custody Orders:

1. “Consultation Privileges: In addition to any provisions which may be contained herein regarding custody and physical custody, Father shall have the following rights with respect to the children: reasonable telephone calling privileges; access to report cards and other relevant information concerning the progress of the child in school and therapy; to receive notices of conferences from the school district or other governmental agencies concerning the services to be provided to the children, and due process procedures in the education system, and to attend and participate in them; however, the power to sign and approve Individualized Education Plans and Notices of Recommended Assignments and to initiate due process proceedings are vested solely in Mother.
2. “Mother’s Privileges:  Mother shall have the following rights and privileges with respect to the children: the sole right to sign and approve Individualized Education Plans and Notice of Recommended Assignments and to initiate due process proceedings concerning the services and education to be provided to the child(ren); the right to take the children from the Commonwealth of Pennsylvania and relocate in another state and make arrangements with the Father for reasonable partial physical custody of the children; and such other powers and rights (with their correlative duties) provided by the Statutes of the Commonwealth of Pennsylvania and published decisions of the Courts of Pennsylvania.”
3. Gregory P. v. North Allegheny School District:  (Special Education Opinion No. 758, May 7, 1997).
   1. Facts: Gregory was an eight-year-old second grade student in the North Allegheny School District with a hearing impairment.  The parents in this case were divorced and had an enforceable Custody Consent Order in effect.
   2. Language Upheld: The Special Education Appeal Panel upheld the following language contained in the Custody Consent Order:  “Mother shall have primary legal custody with regard to Gregory’s educational needs.”  The Order states that the “Mother (1) shall have final-decision-making power with respect to educational matters, including without limitation Gregory’s IEP.  Mother shall give Father an opportunity to participate in educational assignments, IEP conferences, and all events at Gregory’s school in which parents are normally involved; (2) shall have an ‘affirmative duty’ to inform the Father of all significant developments with respect to Gregory’s education, and (3) must consult with the Father before making decisions about Gregory’s education.  The Order’s consultation requirement underscores that the Mother may request a due process hearing.”
   3. Holding:  The Panel held that the authority to make decisions relative to educational matters lies with the parent with legal responsibility.  In granting custody to only one parent, the court which issued the Custody Consent Order determined that the custodial parent shall be responsible for decisions relative to the child’s education.  In so doing, the court’s order did not give the non-custodial parent standing to request a due process hearing.  The Panel went on to say that the jurisdiction for resolving custody disputes remains with that court, not with the Hearing Appeals Panel.  The noncustodial parent’s recourse is to petition the custody court for modification of the custody order.

7. Case Law

1. Gregory P. v. North Allegheny School District, Special Education Opinion Number 705 (March 1, 1996).  This is the same Gregory P. in Opinion No. 758.  The parties had a custody order dividing physical custody equally between the parents. Gregory alternates living with one of his parents each week.  The issue in this case was whether the District was obligated to provide transportation to and from the father’s residence during the alternating weeks the father had physical custody of Gregory.  The Panel held in favor of the father and held that the District was obligated to transport Gregory to and from his father’s residence.  Because the District failed to provide transportation, Gregory’s father is entitled to reasonable reimbursement for mileage.
2. Tiffani L. v. Hazleton Area School District, Special Education Opinion No. 967 (November 18, 1999) and 993 (January 20, 2000).
   1. Facts: Tiffani L. was a ten-year-old eligible student who resided with her mother in the Hazleton Area School District.  Tiffani is a child with multiple disabilities.  Although the mother had sole custody of Tiffani, both parents participated in the due process hearing.  There was no custody order in effect.
   2. No. 967: The Panel affirmed the hearing officer’s decision to dismiss the hearing without prejudice in light of the following: (1) Father’s request for an indefinite leave of absence and delay of the hearing; (2) both parents involvement in the litigation, with the mother on the verge of hiring counsel and the father pursuing his own disability claims.  The Panel went on to state that “There is no evidence indicating that the right to make educational decisions reposes in one parent and not the other.  Under such circumstances, considerations of finality, administrative efficiency and fairness suggest that it would be unwise for the hearing to move forward in the absence of Tiffani’s father; and (3) the dismissal allows the parents to pursue the matter at a later time so long as they exercise that right in a timely fashion.”
   3. No. 993: The father in the Tiffani L. case filed a second due process hearing request where a new hearing officer was appointed.  The substantive issues and parties in this second case were basically identical to the previous case. The District argued that the father had no standing as the non-custodial parent and sought an order preventing the father from representing himself in the due process hearing based upon father’s contemptuous conduct in the previous hearing.  The hearing officer ruled in favor of the father and permitted him to represent himself and proceed with the hearing.  The District filed Exceptions to that ruling and ultimately prevailed.
   4. Holding: The Panel reversed the hearing officer’s decision based on the principle of res judicata and the requirement in federal regulations that decisions of appellate reviews are final unless appealed under a civil action. 34 CFR § 300.510.  By not appealing the decision of the appellate panel to a court of appropriate jurisdiction, the father waived his right to further appeal.  The Panel goes on to state that nothing had changed since the final order entered by the appellate panel in Opinion # 967.  In fact, the Panel noted that the father’s behavior had continued unabated in that there was a protection from abuse order entered against the father by the mother and that the father had been arrested twice for assault in one week.  The Panel barred the father from participation in the special education due process hearing.

8. Provide Copy to School:  Once the Custody Order is finalized, providing a copy to the child’s school will facilitate the flow of information to the appropriate parties and put the school on notice regarding who has legal responsibility in case a due process is requested.