Does the Judgment Make Clear "in Whose Judgement"? Educational Rights Holders and Special Education

• Publication year: 2022
• Author: Written by Matthew J. Becker

DOES THE JUDGMENT MAKE CLEAR "IN WHOSE JUDGEMENT"? EDUCATIONAL RIGHTS HOLDERS AND SPECIAL EDUCATION

Written by Matthew J. Becker^*

I. KIDS CAUGHT IN THE MIDDLE

Divorces can be messy, antagonistic affairs which take a major toll not only on the participants (adults) but on the non-participants (children) as well. In the haste to craft a settlement agreement acceptable to both sides, a joint custody agreement commonly asks parties to "share in the responsibility and discuss in good faith matters concerning the . . . education . . . of the children."¹ This author contends that this provision actually muddies the waters where it should not, as it inserts a good faith clause to discuss issues rather than specifically outlining who, what, where and when as to decisions regarding the education of children.

Attorneys who focus on special education matters want clarity s a goal - not a superficial détente - about what divorced parents can, and cannot, do as far as educational choices for their children. Otherwise, it too often becomes one parent pitted against another. It is not an education attorney's downstream job to referee divorced parents. School districts will, invariably, back the status quo - or the parent who is resisting action to change it. The sad fact is the child loses in a case like this and it is a more common scenario than might be understood.

The notice on the Joint Legal Custody Attachment (form FL-341(E)), commonly attached to parents' judgments or marital settlement agreements, states that in exercising joint legal custody, a parent may "act alone, as long as the action does not conflict with any orders about the physical custody of the children,"² and this could promote action in the interest of a child. Unfortunately, this is not the case if one parent actively opposes the course of action advocated by the other parent in the education setting.

Problems within the educational sphere can be solved with some additional verbiage in the judgment or marital settlement agreement (MSA) specifically outlining what issues parents can pursue, and how and who pays for it. These ideas are generally addressed in the California Transaction Family Forms³; however, the practice tip states one parent should have final say - which opens up another issue (addressed below) and could lead to a child not receiving valuable services available to them. A lack of specificity is most troubling in the special education realm and could be solved, for example, in a manner similar to how visitation is explicitly spelled out in form FL-311.⁴

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II. ISSUE #1 REGARDING EDUCATIONAL RIGHTS: WHAT IS DECIDED AND BY WHOM?5

In matters relating to education, educational plans and procuring educational services, the definition of a "parent" is expansive and can include almost any individual.⁶ Given this definition, it is of paramount importance for divorced parents to explicitly write out the conditions under which a surrogate would be allowed to represent the child and the parameters of how that surrogate will be able to represent the child's interests. Conditions where a parent is unavailable could relate to medical issues, employment responsibilities, etc. A parent needs the ability to cover for the unavailable parent; otherwise, there is a possibility that a non-custodial adult is making decisions regarding your client's child.⁷

Practical tip: Specify the conditions which trigger this, and which adults are authorized to represent the child when one or both parents are not available.⁸ Cross-referencing educational parameters between form FL-341(E) and other forms⁹ creates redundancy and reduces the possibility of misinterpreted instructions, orders or even forged documents.

Likewise, a communication¹⁰ order is also good practice in education. There have been dozens of instances during my educational career where I received communication from an adult for whom it was not obvious any educational rights as to the child existed. These instances add layers of complexity to the job of teachers who already struggle with trying to meet multiple conflicting demands.

Parents have an "absolute right to access"¹¹ their child's educational records. Upon written request, a public agency has...