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FS-Special Education Requirements and Divorce
Jan L. Warner & Jan Collins

Question: My former wife and I were granted joint custody of our daughter (age 12) who has learning disabilities. We have been very dissatisfied with the school’s plan. It was our understanding that if the school did not create an appropriate plan, we could place our daughter in a private school that better meets her needs, and get reimbursed by the school district. The school district personnel tell us that they do not have the funds to reimburse us if we move our child. Is this correct?

Answer: According to the Disabilities Education Act (IDEA), each child is entitled to a “free appropriate public education.” According to our reading, this means that school officials are required to create an individualized education program (IEP) for learning disabled children. Should the parents not be satisfied with the IEP, they are entitled to seek a hearing to challenge the plan and, after moving through the administrative proceedings, to go into federal court to get relief.

If you and your former wife move your daughter to a private school, you do so at your own risk until a court tells the school district to reimburse you. If your local and state educational authorities find that their IEP was sufficient, you can sue the school district and seek reimbursement of tuition and other costs at the private school. If the court determines that the IEP is inappropriate and that the education provided at the private school is substantially in compliance with the substantive requirements of IDEA, the judge may order that you be reimbursed even though you unilaterally withdrew your daughter from the public school. While your child may be better off at the private school, there is always the chance that you will not be reimbursed. Since these issues are very complex, we urge you to contact a lawyer who handles these kinds of cases because you must prove your claims, and because of the importance of the issues, you should not proceed without proper representatiaon.

Question: My former wife and I have joint custody of our two children, one of whom has learning disabilities. She and I were getting along great until she remarried last year. Since then, my visitation has become more difficult and, most importantly, I have not been notified of school meetings regarding our son’s individualized education program. When I called the school, I was told that my wife and her current husband had attended the meetings. My wife refuses to discuss this with me except to say that her new husband will be with her and needs to be involved. Is there anything I can do to keep from being excluded?

Answer: The Disabilities Education Act provides that “parents”, not “stepparents”, are to be involved in these planning sessions. While stepparents may be “involved”, they have no authority in this or any other area dealing with the interests of your child. Since your ex and you were getting along well prior to her remarriage, it seems inescapable that excluding you is little more than a power play. If you and she can’t come to some agreement, we suggest that you let the school know that you do not authorize the distribution of any information about your son to your wife’s new husband and that you want him barred from future meetings. If these problems persist, we suggest you contact a lawyer to bring these issues before the Family Court.



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Suggested Reading:
Separation and Divorce Guidebook
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FS-Becareful of Bargaining Away Alimony As Child Support
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FS-Lawyer Tells Me to Lie & Pension Double Dipped
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FS-On and Off Again Reconciles Can Create Agreement Disasters
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FS-The Dangers of Family Loans
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FS-Transference of Affection & 10 Tips of Divorce
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