Special Education Issues in Family Law Presented by : Ilene Young, Esquire & Grace Deon, Esquire

Custody Two main divisions: Physical and Legal Legal Custody = Decision-making authority May be viewed as a bundle of rights

Physical Custody & LEA The residence of the primary physical custodian is the childs residence. Query: In a split physical custody scheme, how is residence determined?

Custody Orders Standard custody order has shared legal custody Provides equal decision-making authority Other possible schemes Sole legal custody Sole legal custody for a particular purpose such as educational decision-making

IDEA Legal Definitions A parent is the holder of rights under IDEA. A parent with legal custody, whether shared or sole, has the right to act as a parent for legal purposes unless the custody ORDER specifies otherwise.

Legal Standards for Custody Best Interests of the Child Defined as the childs physical, intellectual, moral and spiritual wellbeing.* Best standard contrasts with IDEA standards

Family Court IDEA and entitlement issues are poorly understood by most family court judges and attorneys. Attorneys must educate and plead the law Expert testimony is needed School district and other entitlement documents need interpretation

IDEA Rights at Issue in Custody Law Under IDEA, a parent may agree or refuse an LEA proposal, bring due process claims, or exercise other rights. What if they cant agree or undercut one another? Recourse to family court may be required to referee disagreements or change the legal custody scheme.

Custody issues in special education practice Residential placement of a child may impede the physical custody rights of the non-primary parent. Relocation of a parent from district to district may trigger a waiver of hard won district obligations. Relocation of a parent and/or child from state to state may require advanced court approval.

Custody Rights at Issue in Special Education Law One parent with shared legal custody may bring a due process action despite opposition from the other parent. ODR 9743 (08-09) Hearing Officer held that only the Mother could decide how to use the compensatory education award.

Representing Single Parents in Special Education Law Issues and Risks Securing expert testimony Settlement and waiver authority Controlling information Strategies Obtain and review custody order & docket Obtain written agreement of other parent Indemnity clause Obtain necessary releases for expert prior to start

Special Education Issues in Child Support Three categories of issues in child support: Income calculation Duration of obligation Expenses Special education law may effect all three

Income Calculation Issues Treatment of Education Settlement Trusts Special needs trusts are not counted as income for purposes of child support calculation Query: Education Settlement Trusts: Most trusts arising out of litigation or settlement of minors claims already approved under Pa.R.C.P Education trusts may require explanation

Duration of obligation Child support in Pennsylvania is paid until age 18, or high school graduation unless the child is an unemancipated adult child. Test for emancipation: Whether the child, upon reaching the age of majority, has a mental or physical condition that prevents the child from being self- supporting.* Contrast with IDEA transition standard.

Expense issues Private school issues: Expenses must be reasonable Residential placement may effect support amounts based on primary residence calculations. Third-parties may have standing for reimbursement from the payor parent.