special education issues in family law presented by : ilene young, esquire & grace deon, esquire
TRANSCRIPT
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.