Parents always want what’s best for their children, but this can often be difficult to achieve, particularly when it comes to special education. Parents need to learn how they can help their children and act on their behalf while trying to understand the special education legal system. When divorced parents are trying to navigate this system, it can be even more difficult.

Divorced Parents May Not Agree

In some cases, one parent might not believe what the school says about their child having a disability and needing special education classes. The other parent might agree with and believe the school. When parents are together and on the same side, they can present a united front against the school. However, when you have parents that are divorced and who may be on opposite sides and who may believe differently about their child’s needs, it can get messy.

A special education attorney will always try to advocate for their client, but this can be difficult when the parents are divorced and do not agree on what should happen with their child. Typically, a good attorney will request that an independent expert determine whether the child has a disability or not. This has the potential to let both of the parents have a better, truer understanding of whether their child has a disability or not. It may not always be possible to get through to the parent who doesn’t believe the expert, regardless of what the expert said, and this can create more contention.

Many of the family law cases in Arizona will provide joint legal decision-making for the parents in a divorce. This means that both parents can make legal decisions for their children.

However, when they don’t agree on a matter, this can cause complications. In the case of special education, the schools will often follow what the first parent who comes in requests. This has the potential to put the schools in a bad position, though, since the school and its lawyers are not family attorneys. They don’t look at the parenting agreements or divorce decree to determine their course of action.

Additionally, only one parent’s signature is required for a document. This means that if the school says they believe a child should be evaluated, only one parent has to sign the paper. If they sign, and the other parent doesn’t agree, the school still has the signature and can proceed. Something else to note is that Arizona is a non-consent state, which means the school can implement an individualized education program (IEP), even without a parent needing to sign.

If the school implements the IEP without the consent of either of the parents, they will receive a procedural safeguard notice that lets them know. The parents can file due process if they do not agree with the school.

Again, this can become complicated if one parent agrees with the school’s decision and the other parent doesn’t agree. Even though the schools and the law might only require one signature, there is still the problem of joint decision-making. When there are disagreements, it means that the child wouldn’t be able to change schools in many cases. Even in cases where a parent wins a special education lawsuit that requires the state to pay for a private school, the parent wouldn’t be able to send their child to the school if the other parent doesn’t agree. It could be a violation of the joint legal decision-making that was approved in family court.

If that were to happen, the parents would have to work with a family attorney and not a special education attorney to help get that matter sorted, which can make the entire situation even more difficult to navigate.

What Qualifies a Child for IEP?

Determining whether a child should get special education services can be difficult for parents. The signs that may indicate this need are not always indicative of a special education need. In some cases, students might be disciplined in school with time out, they may not be completing their homework, the grades could be suffering, and the child might not want to go to school or may be unhappy with something happening at school. This could be a sign of a special education need, but it could also be a sign of bullying and other issues. Good communication with the teachers can often be the best way to understand whether there are issues at school that could indicate a need for IEP.

If the parents aren’t getting emails from the teacher and they suspect there is a problem, they should get in touch with the teacher. They can send an email of their own and ask how things are going at school with their child. Ideally, the email will be sent to the teacher, principal, and assistant principal. This increases the chance that people will see the email and it won’t simply end up in a spam folder.

Parents that are concerned may request that their child be tested or evaluated for special education. The school will then review their information, and it typically has to be completed within 15 days. If it’s the last week of the school year that the parent requests this, it doesn’t need to be completed until the following school year. Children can be reviewed for learning issues, as well as behavioral issues. A functional behavioral assessment can help to determine what triggers certain behaviors in the children.

Understanding the behavior of the children and why they do certain things, including behaviors seen as bad, can help parents and educators learn to communicate with them better. Understanding behavior and looking at the disciplinary records of the children can be an indicator that the child may need to be in a special education class.

IEP and COVID

When schools are not in session, it is more difficult to implement IEP, and some of the services will be lost. Some services will still be available, of course, but it can vary based on location. Parents should keep a log and talk with the school to determine if compensatory services may be needed after COVID. This is typically determined on a case-by-case basis.

When Should Parents Seek the Help of a Special Education Attorney?

Typically, the attorneys are the last resort when their children are having trouble and either need to have special education classes not provided by the school, or when the school is trying to force these classes on a child that doesn’t need them. Parents come to the attorneys when they can’t get what they need from the school. The goal is always to ensure the child receives what they need.