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Parental participation is at the heart of the Individuals with Disabilities Education Act (IDEA), the federal law that ensures that children with disabilities receive a “Free Appropriate Public Education” (FAPE). The information and observations provided by parents assist educators in developing an appropriate Individualized Education Program (IEP) for the child.

During a divorce, it’s not always clear, however, who the “parent” is when decisions must be made about the child’s educational program. Both the IDEA and Massachusetts special education regulations give us some guidance.

Under the IDEA, parents have the right to:

• Participate in meetings regarding the identification, evaluation, and educational placement of their child and the provision of FAPE to the child;
• Be part of the groups that determine what additional data are needed as part of an evaluation of the child;
• Have their concerns and the information they provide regarding their child considered in developing, reviewing, and revising the child's IEP;
• Participate in the determination of whether the child's misconduct had a direct and substantial relationship to his disability, or if the conduct in question was the direct result of the district's failure to implement the IEP; and
• Be regularly informed of the child's progress toward meeting her annual goals under the IEP.

See generally 34 C.F.R. § 300.322.

The IDEA says that any of the following individuals may be a “parent” for purposes of rights and responsibilities under the law:

• A biological or adoptive parent;
• A foster parent, unless state law, regulations, or contractual obligations with a state or local entity prohibit a foster parent from acting as a parent;
• A guardian generally authorized to act as the parent or authorized to make educational decisions for the child (but not the state if the child is a ward of the state);
• An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives;
• An individual who is legally responsible for the child’s welfare; and
• An appropriately appointed surrogate parent.

34 C.F.R. § 300.30.

Under Massachusetts special education regulations, for purposes of special-educational decision-making, “parent shall mean father, mother, legal guardian, person acting as a parent of the child, foster parent, or an educational surrogate parent appointed in accordance with federal law.” 603 C.M.R. § 28.02(15).

The issue of who retains the legal authority to make educational decisions for the child is often an issue during a divorce. Although a biological or adoptive parent is presumed to be the “parent” for such purposes, once a judicial decree or order identifies a specific person to act as the parent or to make educational decisions for the child, then such person is determined to be the “parent.” Further, an order granting one party sole legal custody will strip the other party of the “parent” role as it pertains to educational decisions.

Further, a court may grant one party sole educational decision-making authority where the parties have a demonstrated history of conflict. In AM v. RM, a 2019 decision from the Massachusetts Appeals Court, for example, the court noted that the Probate and Family Court judge found the parties’ relationship to be “dysfunctional and one of continuous conflict,” and that it was in the children’s best interests for the wife to have final decision-making authority when the parties cannot agree. 95 Mass. App. Ct. 1121. The court added that the judge specifically found that the husband’s “continued aggressive and physically intimidating conduct toward [the wife] prevents the parties from being able to communicate effectively as to major decisions regarding the children.” As a result, the court concluded, there was no abuse of discretion in the judge's determination of legal custody and parenting time. 

If you need additional information or assistance regarding the interplay between educational decision-making and divorce, please do not hesitate to reach out to a partner in the Lawson & Weitzen Family Law Group.