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Child Custody: Educating the Disabled Child

Guiding You Through Difficult Times

If you have custody issues involving an eligible disabled child, you should be aware that there is a federal law that governs how states and public education agencies that receive federal funds are to provide both special education services and early intervention services.   It is called IDEA, the Individuals with Disabilities Education Improvement Act of 2004, which provides other services to the eligible disabled child as well.

IDEA requires public schools to provide eligible children with disabilities with free appropriate public education.  Public schools must adhere to numerous procedural and substantive legal requirements in order to meet the legal standard of developing free appropriate public education for each eligible disabled child.  One of IDEA’s most important requirements is to ensure the rights of the parents of the eligible children with disabilities.

Nevertheless, the case of Navin v. Park Ridge School District (7th Cir. 2001) 270 F.3d 1147 dictates that nothing in IDEA overrides the state’s allocation of authority as part of any custody determination.  The parental rights established by IDEA apply to both parents, unless mandated otherwise by court order or state law.

The California Family Code requires the family law court to specify the circumstances under which the consent of both parents is required when making an order of joint legal custody, as well as the consequences of the failure to obtain mutual consent.  Family Code §3083 requires that in all other circumstances either parent acting alone may exercise legal control of the child.

Standard verbiage requiring parents to share equally in making educational decisions for their child is typically used when developing normal joint legal custody orders, which generally works out okay for both parties.  However, beware that the usage of standard language can create legal issues when it is applied to the disabled child.

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