Joint Legal Custody and Special Education: How to Protect Your Child’s IEP
- Capable Kids Advocacy
- Aug 15
- 6 min read
The author of this article is a non-attorney advocate. Therefore, the contents in its entirety, should not be construed as legal advice, but rather the opinion of the author. Always seek legal advice from a qualified attorney.
For divorced parents—and especially for survivors of domestic violence who are co-parenting with an abusive ex—it’s important to understand something most people aren’t told:
Your parental safeguards under federal and state special education law are designed to protect you and your child from discrimination or violations by the school district, not the other parent. That means these laws don’t always account for the complicated power dynamics that can play out when you're co-parenting with someone who is manipulative, intimidating, or abusive.
On top of that, most family court orders aren’t written with the realities of special education law in mind. So, what you end up with are gray areas—loopholes—where your ability to protect your child’s rights at the IEP table can get undermined, either intentionally or just because no one thought through how these two systems overlap.
This is where things can fall apart. And it's exactly why so many kids with disabilities don’t get what they need in high-conflict custody situations.
But you’re not powerless. The more you understand how these systems intersect—and where the gaps are—the more you can prepare, protect yourself, and advocate effectively for your child.
The following are excerpts from my Special Education Advocacy and Divorce Guidebook, available for purchase under the shop tab above.
JOINT LEGAL CUSTODY
Under federal law, the school district can proceed with the signature of only one "parent" for consent. When parents share joint legal custody, they both fall within the definition of “parent” and are effectively both fully empowered to act unilaterally—at least as far as the federal law is concerned. However, this doesn't always reflect reality and can lead to complications when parents disagree.
It also creates a scenario where the school district is invited to pick and choose between parents, often to the detriment of the student. In the opinion of this author, this is one of the few areas where IDEA falls significantly short of the necessary clarity needed for divorced parents to navigate the special education process. It presumes that in situations of divorce, either all decrees provide one parent with educational authority or that all divorced parents agree on every aspect of their disabled child’s education.
If parents share joint legal custody, then they each have the right to exercise their parental safeguards including requesting mediation, alternate dispute resolution (ADR), filing CDE complaints and filing due process. I am often asked by parents who disagree, when one wants to file due process – “can I file if the other parent disagrees?”
The answer is YES. Again, joint legal custody, at least under education law, allows parents to assert their parental safeguards unilaterally and separately. However, sharing joint legal and not agreeing on filing will complicate or even prevent you from finding a qualified attorney or entering into settlement agreements. Many special education attorneys will not take cases such as this, and any settlement agreement will require the signature of both parents.
When the Office of Administrative Appeals (OAH) issues a decision in a due process case, it will be implemented unless one or both parents appeal the decision. Then, the outcome will depend heavily on the strength of the appealing parent’s argument. However, as was the case in Sheils v. Pennsbury School District, if the OAH decision is in alignment with the filing parent’s requests it is unlikely to be overturned on appeal. This is also true of successful state compliance complaints; those are binding and will be implemented regardless of either parent’s objections.
ACCESS TO RECORDS AND FERPA
Both California Family Code § 3025 and the Federal Education statute FERPA address the issue of access to educational records.
FAM § 3025 states that “Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because that parent is not the child's custodial parent.”
FERPA, or the Family Educational Rights and Privacy Act, exists to grant parents (and students 18 or older) access to information in the student’s education record, and (2) to protect that information from disclosure to third parties without parental consent. FERPA applies to any educational institution that receives public funds and entitles parents and eligible students to: Inspect and review that student’s education record; Schedule a hearing to challenge the content of the record to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy rights of the student; and Insert into such record a written explanation by the parents regarding the content of the record.
FERPA Does Address Custody Orders and Legal Custody; 34 CFR § 99.4 “An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.” In other words, your custody order would have to expressly prohibit the other parent from accessing records.
One of the most common issues I see is one parent unilaterally, and inappropriately, altering educational records without the other parent’s knowledge or consent. This often involves changes related to family members—such as removing the other parent’s contact information and replacing it with a new spouse.
While these issues can usually be corrected, they create unnecessary conflict and drain time and resources for both the other parent and the school. The loophole here I believe, is that Family Code § 3025 in spirit is only about accessing records – not altering them. FERPA grants parents the right to do both.
DOMESTIC VIOLENCE AND RESTRAINING ORDERS
California Family Code Section 3044 establishes a rebuttable presumption that a parent who has committed domestic violence against another parent or child is not in the best interests of the child for them to have sole or joint legal or physical custody. So, in the case of a DVRO being ordered, the victim-parent will be awarded sole legal custody.
However, the advent of Zoom meetings - and the language within restraining orders that only require physical "stay away" requirements can lead school districts to believe that they are obligated to invite the restrained parent to IEP meetings virtually. I've personally seen this come up many times, and it can create unnecessary strain and conflict on both the victim parent and the school team - particularly when the perpetrator parent no longer has legal custody rights.
The simplest way of addressing this is with specificity in your DVRO orders. I always suggest to survivors that they request specific language in their order that prohibits the restrained parent from attending IEP meetings. This establishes clarity for the school district that will absolve them of any concerns they may have about their obligations under ed law and ensures that domestic violence dynamics do not have a seat at the IEP table.
HOW CAN THIS INFORM FAMILY COURT ORDERS FOR CHILDREN WITH IEPS?
When a child has an IEP or 504 Plan, the overlap between family law and special education law needs to be addressed with more precision than most custody orders currently provide. The unique timelines, procedural safeguards, and ongoing nature of special education services mean that delays or power struggles between parents can have a direct and lasting impact on the child’s progress.
To better protect the child’s educational rights and reduce conflict, family court orders should consider incorporating provisions such as:
Tie-breaking authority for any and all decisions related to the maintenance, implementation, or enforcement of the child’s IEP or 504 Plan. This ensures that if parents cannot agree, one parent has the authority to make timely decisions so the child’s services are not delayed.
Tie-breaking authority on altering records to prevent one parent from unilaterally changing educational information—such as removing contact details or altering emergency contacts—without the other parent’s consent.
Specific language in Domestic Violence Restraining Orders (DVROs) stating that the restrained parent is prohibited from attending IEP or 504 meetings, including via teleconference. This provision can protect the victim parent from intimidation or coercion during educational decision-making and help keep the focus on the child’s needs.
The reality is that children with disabilities often require continuous intervention and timely decision-making for 18 years or longer. Relying on court hearings or mediation to resolve every disagreement is not only expensive and slow, the resulting delay in supports and services is not in the child’s best interest. Just as FAPE (Free Appropriate Public Education) must be free in the school setting, it should also be free—both financially and emotionally—in the family court context.
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