Ohio School Boards Association 2016 Special Education Law Workshop CUSTODY ARRANGEMENTS AND SPECIAL EDUCATION March 4, 2016 Presented by: Scott C. Peters 6480 Rockside Woods Blvd. South Suite 300 Cleveland, Ohio 44131 Phone: (216) 503-5055 Fax: (216) 446-6032 www.
1 CUSTODY ARRANGEMENTS AND SPECIAL EDUCATION An Overview of the Administrative Code and General Requirements Every child must have a named individual who can advocate and make special education decisions for him or her. This advocate can be a traditional parent, a guardian, a surrogate, or even a grandparent. It is crucial that school districts and IEP teams understand each child's unique custody situation to determine who can make decisions about the child's education. A. In Which School District Is A Child Entitled To Attend School? Regular Education Student: Generally, a child is entitled to attend school in the district in which the child s Parent resides. R.C. 3313.64(B)(1). o Parent means: Either parent, unless the parents are legally separated, divorced, or their marriage has been dissolved or annulled, in which case Parent means the parent who is the residential parent and legal custodian of the child. R.C. 3313.64(A)(1)(a). Parent means the grandparent with a grandparent power of attorney or a caretaker authorization affidavit. R.C. 3313.64(A)(1)(b). o Implications: If the parents are still married (and not legally separated), Parent means either parent. If the parents are still married but living in different school districts, the child may attend school in either district, tuition-free, regardless of where the child resides. If the parents were never married and paternity has not been established, only the biological mother is the Parent. Once the father establishes paternity, both parents are Parents. Arguably, this is true even after a court issues an order designating one parent to be the legal custodian: Parent still means either parent because the parents, having never been married, have not been legally separated
2 or divorced, and no marriage has been dissolved or annulled. Districts usually take the position that once a court issues a custody order between parents who were never married, the parent named legal custodian is the sole Parent. Special Education Student: When a child receives special education but does not reside in the school district where the Parent resides, the child is entitled to attend school in the district where the child resides. B. Custody Basics o The district of residence (the district where the Parent resides) will be responsible for the costs associated with educating the child. o The district of attendance should invite the district of residence to IEP team meetings. o If the district of residence does not agree with the child s IEP, the district of residence should propose its own IEP and offer to pay the cost of transporting the child back to the district of residence for services. Legal custody is defined as: [A] legal status that vests in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities. R.C. 2151.011(B)(19), made applicable by R.C. 3313.64 (A)(2). Permanent custody is defined as: [A] legal status that vests in a public children services agency or a private child placing agency, all parental rights, duties, and obligations, including the right to consent to adoption, and divests the natural parents or adoptive parents of all parental rights, privileges, and obligations, including all residual rights and obligations. R.C. 2151.011(B)(30), made applicable by R.C. 3313.64 (A)(2).
3 IMPORTANT: Pending motion for change of custody: o The board of education where a non-parent resides may enroll a student tuition-free for up to 60 days based on the sworn statement of the non-parent that he or she has initiated legal proceedings for custody of the student. R.C. 3313.64(E). C. Determining Who Has Custody 1. Parents never married: Prior to paternity being established, the biological mother is presumed to be the residential (custodial) parent. R.C. 3109.042. The birth certificate listing the mother is sufficient to establish legal custody. The biological father has no legal rights to the child until paternity is established. o Simply listing the father s name on the birth certificate conveys no legal rights to the child. If the biological father goes to court to establish paternity, he must produce a certified copy of the juvenile court order designating him to be the legal custodian prior to the school district making any changes regarding custody. R.C. 3313.672. 2. Parents currently married: When the biological parents are still married and there is no court order to the contrary, each parent has equal rights regarding the child. 3. Parents legally separated, divorced, or their marriage has been dissolved: As a result of a legal separation, divorce, or dissolution, the domestic relations court should issue a decree or order designating one parent to be the residential parent and/or legal custodian. The court may also approve a shared parenting plan that outlines custody. 4. Child residing with grandparent: When a child resides with a grandparent and the grandparent does not have legal custody, the grandparent may obtain a grandparent power of attorney or a caretaker authorization affidavit to allow the grandparent to make educational decisions for the child and enroll the child in school.
4 A grandparent power of attorney may be executed only if one of the following circumstances exists: o (1) The parent, guardian, or custodian of the child is: Seriously ill, incarcerated, or about to be incarcerated; Temporarily unable to provide financial support or parental guidance to the child; Temporarily unable to provide adequate care and supervision of the child because of the parent's, guardian's, or custodian's physical or mental condition; Homeless or without a residence because the current residence is destroyed or otherwise uninhabitable; or In or about to enter a residential treatment program for substance abuse. o (2) One of the child's parents is deceased and the other parent, with authority to do so, seeks to execute a power of attorney; or o (3) The parent, guardian, or custodian has a well-founded belief that the power of attorney is in the child's best interest. A caretaker authorization affidavit can be used when a child is residing with a grandparent and the whereabouts of the custodial parent are unknown. D. Access to Student Records 1. Parents never married: only the biological mother has access to records unless the biological father went to court to establish paternity. 2. Parents currently married: both parents have access to records. 3. Parents legally separated, divorced, or their marriage has been dissolved: both parents have access to records, absent a court order divest a parent of such rights. 4. Child residing with grandparent (with grandparent POA or caretaker authorization affidavit): grandparent has access to records AND parent/guardian/custodian also continues to have access to records.
5 E. Attendance at IEP Meetings 1. Parents never married: only the biological mother can attend IEP meetings unless the biological father went to court to establish paternity. 2. Parents currently married: both parents can attend IEP meetings. 3. Parents legally separated, divorced, or their marriage has been dissolved: both parents can attend IEP meetings. Sometimes divorced parents will request separate IEP meetings. Parents DO NOT have the right to separate meetings, even in the situation of divorce. 4. Child residing with grandparent (with grandparent POA or caretaker authorization affidavit): both the grandparent AND the parent/guardian/custodian can attend meetings. F. Parental Consent 1. Parents never married: only the biological mother can provide parental consent unless the biological father went to court to establish paternity 2. Parents currently married: both parents can provide parental consent. 3. Parents legally separated, divorced, or their marriage has been dissolved: both parents can provide parental consent. This can get tricky in situations when divorced parents do not agree on decisions regarding the child. Look to the divorce decree or shared parenting plan to determine the residential/custodial parent. Consider involving the courts if parental consent cannot be obtained. 4. Child residing with grandparent (with grandparent POA or caretaker authorization affidavit): only the grandparent can provide consent. G. Signing Documents 1. Parents never married: only the biological mother can sign documents (IEPs, ETRs, etc.) unless the biological father went to court to establish paternity 2. Parents currently married: both parents can sign documents. 3. Parents legally separated, divorced, or their marriage has been dissolved: both parents can sign documents.
6 4. Child residing with grandparent (with grandparent POA or caretaker authorization affidavit): both the grandparent AND the parent/guardian/custodian can sign documents. H. Other Custody Issues Effect of Guardianship If a court gives a person the right to have physical care and control of a child, the right to determine where and with whom the child will live, and the right and duty to protect, train, and discipline the child, such person would have legal custody of the child for school purposes and the child would be permitted to attend school in the district in which the person and child are residing. If the rights and responsibilities of the guardian fall short of that legal custody, the child would not have such a right. Even where the right exists under guardianship, the obligation to pay tuition would still fall upon the district in which the natural or adoptive parent resides. Guardian Ad Litem The role of a guardian ad litem ("GAL") is more specialized than that of a regular guardian. A GAL is specifically responsible for protecting the interests of a minor child who is in some way involved in a lawsuit. When a GAL is needed, the court will appoint one. The GAL does not have legal custody of the child, and therefore, would not have rights to the child. But since the GAL is closely involved with the decision-making and daily life of the child, consider inviting the GAL to IEP meetings. Access to education records: One area that arises related to a GAL is the right to records. The state model form for appointing a GAL states that the GAL has access to the student's educational records. Therefore, if the court in your county utilizes such a form, then the GAL will have the right to access records. Rights of Biological Parent After Adoption The law provides that an adoption (by a step-parent or otherwise) will: terminate all legal relationships between the adopted person and his relatives, including his biological or other legal parents, so that the adopted person thereafter is a stranger to his former relatives for all purposes...[and] create the relationship of parent and child between the petitioner [for
7 adoption] and the adopted person, as if the adopted person were a legitimate blood descendant of the petitioner... R.C. 3107.15(A)(1),(2). Based on this legal concept that the biological parent becomes a stranger to the child, such biological parent would have no greater right of access to the child at school than any other person off the street, and should accordingly be denied such access in the absence of any special court order to the contrary. Homeless Students: When a student loses permanent housing and becomes a homeless child[] or youth[] as defined under federal law, or when a homeless child changes temporary living arrangements, the child s Parent has the option of enrolling the child in school, tuition-free, in: 1. The district in which the child last resided before becoming homeless, or 2. The district in which the homeless child is living. R.C. 3313.64(F)(13). Homeless children or youths means an individual who lacks a fixed, regular, and adequate nighttime residence. 42 U.S.C. 11434a(2). Homeless children or youths includes children who are: 1. Sharing the housing of others due to loss of housing, economic hardship, or similar reasons; 2. Living in motels, hotels, trailer parks, or camp grounds due to the lack of alternative adequate accommodations; 3. Living in emergency or transitional shelters; 4. Abandoned in hospitals; or 5. Are awaiting foster care placement. 42 U.S.C. 11434a(2)(B)(i).
8 Homeless children or youths includes children who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for humans. 42 U.S.C. 11434a(2)(B)(ii). Homeless children or youths includes children who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings. 42 U.S.C. 11434a(2)(B)(iii). Homeless children or youths includes migratory children who are living in any of the above describe circumstances. 42 U.S.C. 11434a(2)(B)(iv). Homeless students. R.C. 3313.64(F)(13) and the McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11431 et seq. When a child is presented for enrollment and purported to be homeless, the district must enroll the child on a tuition-free basis even if the person enrolling the child does not present documentation otherwise required for enrollment. The district must seek the needed documentation while the child is attending school. If the district has doubts that the child is homeless, the district must enroll the child on a tuition-free basis and investigate the suspect claim while the child is attending school. Surrogate Parents School districts must establish procedures to protect the rights of children where: o The parents of the child cannot be identified or located, o The child is a ward of the state, or o The child is an unaccompanied homeless youth as defined by the McKinney-Vento Homeless Assistance Act.
9 "Unaccompanied homeless youth": homeless child not accompanied by a parent or guardian When a student meets one of the requirements above, the school district must assign a surrogate parent for the student within 30 days of determining the need for a surrogate. Criteria for a surrogate parent: o Not an employee of the district, or any other agency that is involved in the education or care of the child; o Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and o Has knowledge and skills that ensure adequate representation of the child. For a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents until a surrogate parent can be appointed that meets all of the criteria above. Surrogate parent authority: o Surrogate parent may represent the child in all matters relating to: The identification, evaluation, and educational placement of the child; and The provision of FAPE to the child. Reporting Abuse: A school district's obligation to report abuse exists in all circumstances, and may require additional diligence when a student is changing custody. Failure to take care of a student's needs, including required involvement with special education, may trigger a duty to report. Subpoenas in Custody Cases: In a custody matter, particularly one involving a student with special needs, school district employees may be required to testify about how the student is being cared for. This will likely include how active each parent is in the special
10 education process (attendance at IEP meetings, corresponding with teachers, etc.). Title VI: For limited English proficient ("LEP") and English language learners ("ELL"), ensure that children and their parents (if applicable) have access to documents in their native language and interpreters as appropriate. For students: services must be delivered in a manner they can understand. For parents: particularly in the special education context, school districts must make sure that parents understand documents and meetings to allow parents to have meaningful participation. It is not appropriate to ask the student to translate for parents (or ask them to bring another family member to translate). Ensure the district has procedures for interpreter services and translation of documents and emails. Also, ODE has translated some documents (including Whose IDEA Is This?) into many other languages. Financial Coverage from Children's Services and Developmental Disabilities Boards In a situation where a student has intensive needs and parents can no longer manage the child at home (such as when the child is violent and cannot be controlled by the parent), the student may require residential placement. When the concern is the student's home-life, and the placement is not based on the student's educational needs, it is NOT the school district's obligation to pay for the cost of the residential placement. In these situations, parents often try to utilize county services and funds from Children's Services or Developmental Disabilities Boards. In some counties, if parents have sufficient means, the public entities will not provide funds. Sometimes, parents have to give up some of their parental rights in order to obtain appropriate contributions for the residential placement. Be aware of such a situation. The district will likely have to deal with a guardian, who should be invited to the IEP meeting.
11 REMEMBER: if there is no educational need for the residential placement, clarify at the IEP meeting (and document in a PR-01) that the district is only responsible for the educational component of the placement, not the residential component. Parental Observations: If a school district has a policy limiting the number of times parents can observe their special education student, how does this affect divorced parents? Do both parents get to utilize the observation time themselves, or do they have to share? Example: your district has a policy of 1 parental observation per semester. For divorced parents, does each parent get one observation? Or do they get one observation total? What about asking them to observe at the same time? Students Placed at Residential Facilities: A child who is in the legal or permanent custody of a government agency or a person other than the Parent is entitled to attend school in the district where the child resides. The district where the Parent resides remains the district of residence and is responsible for the cost of educating the child. Parent means the parent with residual parental rights or from whom all parental rights have been divested. o A common example is where the child has been removed from the parents home because of dependency, neglect, or abuse allegations and placed in the custody of Children s Services. The juvenile court is required, at the time it issues an order that removes the child from the parents home (or vests legal or permanent custody of the child in a non-parent) to designate the school district that is responsible for the cost of education. R.C. 2151.362. o The same analysis applies when a juvenile court places the child in the legal custody of a non-parent even in the absence of allegations of dependency, neglect, or abuse. If the child involved in the juvenile court case receives special education, the court is supposed to designate the school district of residence, i.e., the school district in which the child s parents reside, to
12 be the district responsible for the cost of educating the child, regardless of who has custody of the child. R.C. 2151.362 and 3313.64(C)(1). If the child involved in the juvenile court case does not receive special education, the court is supposed to designate the school district in which the parents resided at the time of removal from home, or vesting of custody in a non-parent, to be responsible for the cost of educating the child. o If the district of residence of the parents at the time of removal or vesting of custody in a non-parent cannot be determined, the district in which the child resided at the time the agency or nonparent obtained custody is responsible for the cost of education. R.C. 2151.362 and 3313.64(C)(2). Hypothetical Fact Patterns (1) Parents are going through a divorce. Their first-grade son is being evaluated by the district for special education services. The student currently resides with his mother, but the father is attempting to obtain full custody. The father has alleged that the mother has neglected the child. The court appointed a guardian ad litem to protect the child's interests during the proceeding. The form appointing the GAL is silent on whether the GAL has the right to educational records. Both parents have subpoenaed the school district to testify about the student's well-being. Both parents and the GAL requested the student's educational records. QUESTIONS: o Who should be invited to the upcoming ETR team meeting for the student? o Can either parent provide consent for IDEA eligibility purposes? o What if teh parents disagree regarding eligibility? o Can either parent request an IEE? o What if both parents request an IEE, but request different
13 evaluators? o Can the district be required to testify for both sides? o Who has the right to the student's educational records? (2) The same parents have finalized their divorce. The court designated the father to be the residential parent. The mother has visitation rights but not custody of the child. After the ETR is completed, the district convenes the IEP team to develop the student's IEP. Both parents attend the meeting. During the meeting, the mother is very vocal about her disagreement with providing any special education services to her son or disagrees with the proposed services. The father agrees with the district that the student needs special education services. At the end of the meeting, the mother refuses to sign the IEP and leaves the meeting. The father signs consent to implement the IEP. QUESTIONS: o First, is the mother allowed to participate in the IEP meeting? o Does it matter that the mother did not sign the IEP? Is the father's consent sufficient to implement the IEP? o What should the district do if the mother requests her son's educational records after the meeting? (3) The grandmother of a child with special needs arrives at the school attempting to enroll her granddaughter in your school district. The child now resides with the grandmother, who lives in your district. The grandmother provides a grandparent power of attorney as the basis for enrolling the child. The reason the power of attorney was executed is because the child's mother is moving out of state and wants the child to stay in school in Ohio and live with the grandmother. The child's father is not involved (the parents were not married when the child was born and the father never established paternity). QUESTIONS: o Can the grandmother enroll the child based upon the grandparent power of attorney? o Could the grandmother attempt to obtain a caretaker authorization
14 affidavit based upon the reason the child is residing with her? o Must the district enroll the student even without a grandparent power of attorney or a caretaker authorization affidavit? o Who can provide parental consent and sign special education documents for the child? (4) A sophomore with special needs lives with his father in District A. The student's mother is deceased. The father loses his job and is evicted from his apartment. The father and the student move in with the father's sister in District B. Originally, the student continued to attend school in District A. The father then gets a job offer that requires him to move to another state. The student does not want to go with him, and so he remains with his aunt. The aunt then tries to enroll the student in District B. QUESTIONS: o Can the student's aunt enroll him in District B? o Is the student considered homeless? o Must the district obtain a surrogate for the student? o Who can provide parental consent and sign special education documents?