The Intersection of Special Education and Family Law: Thoughts for Family Law Attorneys in Divorce and Custody Cases
| Author | Richard D. Marsico |
| Position | Professor of Law and Director of the Wilf Impact Center for Public Interest Law at New York Law School |
| Pages | 193-229 |
193
The Intersection of Special Education
and Family Law: Thoughts for Family
Law Attorneys in Divorce and Custody
Cases
RICHARD D. MARSICO*
Introduction
The Individuals with Disabilities Education Act (IDEA)1 requires
participating states to provide a free appropriate public education (FAPE)
to all children with disabilities.2 The IDEA gives parents of children with
disabilities signicant rights and major responsibilities in developing and
maintaining their child’s education. Getting the most out of the IDEA for
their children requires parents to commit substantial time and nancial
resources that are difcult to provide in the best circumstances.3 When
parents are having marital difculties, separated, undergoing a divorce, or
negotiating child custody, these difculties can be exacerbated as parents
1. 20 U.S.C. §§ 1400–1482.
2. Id. § 1412(a)(1).
3. See Richard D. Marsico, The Intersection of Race, Wealth, and Special Education:
The Role of Structural Inequities in the IDEA, 66 n.y.l. sCh. l. Rev. 207, 209–10, 216–33
(2021/2022).
*Professor of Law and Director of the Wilf Impact Center for Public Interest Law at New
York Law School. Thank you to Jean Marie Brescia as always for her insight and inspiration
in writing this article and her review of an earlier draft; to the New York Law School student
editors of the Family Law Quarterly, including Toni-Ann Kreisberg, Armine Parmakszyan,
Soa O’Shea, Alexandra Ogunsanya, Darryl Bobb, Sarah Silbowitz, and Theodore Richert, for
their assistance with this article; and to Lisa Grumet for bringing this issue to fruition.
Published in Family Law Quarterly, Volume 57, Numbers 2&3, 2024. © 2024 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
194 Family Law Quarterly, Volume 57, Numbers 2&3, 2023–2024
navigate the intersection of the federal IDEA and state family law rules
regarding educational decision-making and parenting time.4
Providing special education to a child with a disability is an ongoing
process that requires and benets from parental participation. Neither the
provision of special education nor the need for parental involvement pause
during divorce proceedings or after custody is determined. The purpose
of this article is to provide information about the IDEA to family law
attorneys that will help them protect the educational rights of children
with disabilities and their parents during divorce and custody proceedings.
This includes (1) making an initial assessment of the provision of special
education to the child; (2) consulting with a special education expert
if necessary;5 (3) monitoring the school district’s provision of special
education; (4) ensuring that the child’s and parent’s special education
rights are protected;6 and (5) creating a clear and comprehensive custody
agreement.
Part I is a very brief survey of the IDEA. Part II focuses on the role,
rights, and expectations of parents of children with disabilities under the
IDEA. Finally, Part III turns Parts I and II into an action plan. It identies
by category a list of parental rights under the IDEA, provides a set of
questions to ask clients in divorce and custody cases who have children
with disabilities to establish an informational baseline, identies the
documents attorneys should obtain, and includes a list of issue-spotting
questions designed to assist attorneys in monitoring the provision of
special education and designing custody agreements that clearly and
comprehensively protect their client’s special education rights. Part III
concludes with a list of common special education acronyms.
I. An Overview of the IDEA
This overview describes the IDEA’s background, its substantive
educational and procedural rights, the process for developing and
maintaining special education services for children and remedies for IDEA
4. See Joshua M. Kershenbaum, Theresa Glennon & Zanita A. Zacks-Gabriel, Through
the Labyrinths: Using Collaborative Practice and Special Needs Counsel to Help Parents of
Children with Special Needs Restructure Their Families, 93 Pa. B. ass’n Q. 47 (2022).
5. Id. at 52–53 (proposing using collaborative practice involving disability law experts to
help families undergoing divorce or custody disputes protect the rights of their children with
disabilities).
6. Id. at 56 (“[W]hile it is necessary for parents of children with special needs to decide
who will hold their child’s special education rights, it is not sufcient. They still need guidance
from experienced lawyers who can alert them to the myriad pitfalls that await the unwary or
uninformed.”).
Published in Family Law Quarterly, Volume 57, Numbers 2&3, 2024. © 2024 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The Intersection of Special Education and Family Law 195
violations, as well as a brief description of other laws that protect the rights
of children with disabilities and their families. The goal of this overview is
to provide family law attorneys who are not familiar with special education
law with a basic understanding of the IDEA so they know what they know,
what they do not know, and when to seek help.7
A. Background
1. Th e IDe A Is O ne Of The M Any LegAc Ies Of Br own v. Board of
Educatio n
The IDEA can trace its roots to the Supreme Court’s decision in
Brown v. Board of Education.8 When the Court decided Brown, school
districts used their virtually unbridled discretion to exclude children
with disabilities from public schools.9 Brown inspired advocates for such
children to pursue a movement to open public schools to children with
disabilities.10 Among other efforts, advocates led lawsuits against states
and school districts around the country asserting that excluding children
from public schools because of their disabilities was unconstitutional and
violated state constitutions and education laws. Two of these lawsuits,11
which resulted in judgments that required the school districts to admit
students with disabilities, provide them with an appropriate education, and
guarantee signicant procedural protections, were catalysts for passing the
IDEA.12
7. The IDEA is a complex law that covers nearly 100 pages in the U.S. Code. See 20 U.S.C.
§§ 1400–1482. A complete description of the IDEA and its judicial interpretations, nuances,
exceptions, and exceptions to its exceptions is beyond the scope of this article.
8. 347 U.S. 483 (1954).
9. See deBoRah n. aRCheR & RiChaRd d. maRsiCo, sPeCial edUCation law and PRaCtiCe:
Cases and mateRials 3 (2017). This discrimination often came with judicial approval. See
Dep’t of Welfare v. Haas, 154 N.E.2d 265, 270 (Ill. 1958) (rejecting the argument that Illinois’s
constitution required it to pay for the education of a child with a disability); State ex rel. Beattie
v. Bd. of Educ., 172 N.W. 153 (Wis. 1919) (upholding school board’s decision to exclude a
child with a disability from public school); Watson v. City of Cambridge, 157 Mass. 561 (1893)
(upholding school board’s decision to exclude child with a disability from public school).
10. See aRCheR & maRsiCo, supra note 9, at 3–4.
11. See Mills v. Bd. of Educ., 348 F. Supp. 866 (D.D.C. 1972); Pa. Ass’n for Retarded
Children v. Commw. of Pa., 334 F. Supp. 1257 (E.D. Pa. 1971) and 343 F. Supp. 279 (E.D. Pa.
1972).
supra note 9, at 14–28.
Published in Family Law Quarterly, Volume 57, Numbers 2&3, 2024. © 2024 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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