United States: Top 4 Questions About Divorce And Special Education

Last Updated: September 23 2015
Article by Ronald P. Barriere

Divorce is more common than ever. According to the Center for Disease Control, another trend on the rise is the prevalence of Attention Deficit Disorder ("ADD") and Attention Deficit Hyperactive Disorder ("ADHD") diagnosed in young children. As a family law attorney, I've seen how the overlap between the two can lead to increased conflict between divorced or divorcing parents as to how to handle their ADHD child's medical and special education plan.

Often, a child with ADD, ADHD or another learning disability will require a specialized list of accommodations or alterations to the school's general education plan in order to address the child's unique disability as well as the child's learning style. The two must common types of specialized education plan are the 504 plan and Individual Education Plan ("IEP").

1. What's a 504 plan?

A 504 Plan is a specialized education plan for a child who hasn't been designated as eligible for special education services. The plan lists accommodations for the child to enable them to more effectively participate in the general classroom. These accommodations can range from preferential seating, written handouts for assignments or other adjustments that help the child to assimilate into the general educational curriculum. It is advisable for parents to communicate early and often with one another and the child's school about options for establishing a 504 Plan. For more information on 504 Plans, the Massachusetts Department of Health and Human Services website is a great resource.

2. How is a 504 Plan different than an IEP?

Similarly, an Individual Education Plan ("IEP") is also designed to enrich the subject child's academic experience. However, the child in question has been designated as having a disability that makes that child eligible for an educational program tailored to his/her unique needs. An IEP can incorporate many of the accommodations in a 504 plan, but may also include more significant accommodations, such as testing or even outside placement. Thus, many parents (and school administrators) consider an IEP to be a more serious or significant plan in addressing a subject child's needs. There are several requirements to establishing and maintaining an IEP plan, the most well-known and important of which is the periodic meeting of the so-called "IEP Team." The team most often includes one or both parents, one or more teachers from the school, and (in cases where a child is age fourteen or older) the child him/herself. Again, I recommend the Massachusetts Department of Health and Human Services website for more information about IEP Plans.

3. Who gets to make the decisions?

The first and most important consideration for parents and school administrators in working together to craft a specialized education program for a child with special needs is the designation of "legal custodian." The trend in the Probate and Family Court of Massachusetts over the past several years has been that the parents should enjoy joint or shared legal custody of the children of the marriage. Presumably, the expectation has been that even during or after an unfriendly divorce, parents would put differences aside for the betterment of their children. Sadly, this isn't always the case.

Both parents have the right to be members of a child's 504 plan or IEP team unless the divorce agreement/judgment specifically states otherwise. Even when a family is intact, parents of children with special needs often disagree about the care their children should receive. It's important that divorcing parties have clearly defined roles with respect to who has what role in making educational decisions for children, either by way of an agreement or divorce judgment. If both parents have shared legal custody and cannot agree as to the appropriate treatment plan for their child, they must consider seeking court intervention. Add in the difficulties of obtaining and managing a 504 plan or IEP plan, and many divorced or divorcing spouses seek a designation of sole legal custody. At a minimum, consider a "carve-out" of sole legal custody with respect to educational decisions. This just helps to minimize the conflict and ensure against a delay in the care the child is supposed to receive.

4. Yes, but do I need an attorney?

This depends on your situation. The decision to seek a change a child's curriculum shouldn't be taken lightly. Like all parenting decisions, it should be made with a combination of good judgment, instinct and research. Divorced or divorcing parents who have concerns about their child's education plan and/or their ability to communicate with their coparent should consult with a skilled family law practitioner with experience helping divorced/divorcing parents navigate the 504/IEP process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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