There can be an array of disagreements between separated partners while raising a child together, but what happens when those disagreements have an impact on the child’s access to medical care and education? Who has final say? What do you do when parents cannot agree? What questions do you need to ask, and what can you expect if you are going through this process? For children with disabilities under 18 years old, these answers can get very involved.
For guidance on how to navigate these disagreements when handling educational, medical, funding, and/or therapeutic decisions, we spoke with Special Education Law Attorney Bryan C. Winn; Family Law Attorney and Mediator Gabriel Wintner; Certified Family Law Specialist Shani Braffman Amen; Community Legal Aid SoCal Family Law Unit Attorney and Co-Supervisor Yolanda Omana and Staff Attorney Amy Abshier; Special Education Law Attorney David German of Vanaman German; Chris Arroyo, Los Angeles office manager for the State Council on Developmental Disabilities (SCDD); Special Education Advocate and Founder of Capable Kids Tara Shenson; and Undivided parents who have experience with these difficult situations. Please keep in mind that this information is not intended to be legal advice or a substitute for legal advice.
When parents are going through divorce, Amen states that until a court order says otherwise, both parents have equal rights to make decisions about their children. Keep in mind that this changes once there is a court order in place, as that court order may state who can make the decisions and how decisions are to be made. A common order is for parties to share joint legal custody, wherein both parents have an equal right to make decisions regarding the health, welfare, and education of their child. However, Amen explains that there can be all sorts of legal custody variations, so the specific terms of the court's legal custody order will dictate who has the right to make the decisions, whether certain decisions require mutual agreement, and other issues.
To go further in-depth about the legal custody variations, Wintner breaks down the difference between physical and legal custody, and how this impacts decision-making:
“Physical custody is where the children are and where they spend time. Legal custody is decision-making authority over the children, so that can be decision-making authority over where they go to school, which doctor they will see, which medical procedures they will have or not have, even what kind of religion they're practicing. It's always possible for one parent post-divorce to have sole custody on one or both of these topics. If you've got the children with you, even most of the time, the legal custody is probably going to make sense to be in your hands. But it's all variable. And by large, having sole custody, physical or legal, is rare. It's rare because in our society, the law has a strong bias in favor of having to involve parents.”
Wintner explains:
Wintner adds that in what feels like never-ending disagreements, “Ultimately, if it really is just not functional, you might have to go back to court and ask for a more specific legal custody order and argue that you should have decision-making authority over specific things because you're not able to come to agreements on those matters.”
“Tie-breaking” authority
Once a family law case is filed, a party can file a Request for Order asking a judge to rule on the disputed issue. Amen explains that from her experience, in such disputes, judges are more likely to decide which parent has authority to make the decision, or give one parent “tie-breaking authority,” rather than the judge directly making the decision for your child. For example, she says, “Rather than saying, ‘I’m making an order that Johnny can take ADHD medication,’ the court might make an order that mom has legal custody over the issue of Johnny's ADHD medication, or over Johnny's medical issues, or that mom has tie-breaking authority on any issues related to Johnny's ADHD treatment. What the court is more likely to do is allocate responsibility and authority for that decision to a particular parent rather than deciding what the best course of medication is for Johnny or where Johnny should go to school and so forth.”
“Best interest” of the child
If the parties cannot agree on a decision, the judge hears evidence from both sides about the facts — and the reason for each party’s position and parenting — then the court decides which of the parents they believe is more likely to make decisions that are in the child’s best interest. “Best interest” is the standard that generally applies to custody decisions. Amen explains, “During the course of a divorce or separation, you’re addressing the child's immediate needs, but you’re also trying to put orders in place that have some longevity and a degree of flexibility so that [the order] allows the decisions to be made in the future without having to run back to court.”
Decisions and rulings are made not only for the specific issue but for the party who will act in accordance with the best interest of the child. The Child Welfare Information Gateway of The Children’s Bureau states that while “there is no standard definition of ‘best interests of the child,’ the term generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child.”
Omana further explains that custody should be awarded according to the child’s best interest, which is where the court must consider the child’s health, safety, and welfare when making orders.
Ask yourself: Can we (you and your child’s other parent) do this together?
Winn states, “The parental authority to make decisions for their children can be challenged if there’s evidence that the parent is making decisions that place the child at significant risk of harm.”
In some cases, the court may appoint what’s called a guardian ad litem: a neutral person whose responsibility it is to represent the child’s best interests. The judge may rule to terminate parental rights if the parent’s actions are deemed to be severely detrimental to the child’s well-being.
Some examples of significant risk of serious harm include refusing to provide necessary medical care, exposing the child to abusive or neglectful conditions, or engaging in behavior that endangers the child's safety, such as drug use in the home or driving under the influence with the child in the car.
While a court ruling may be the only option that works for some families, it’s not the only option. There are alternative dispute resolution methods that help families address disagreements without resorting to the court. Mediation, stipulated agreements negotiated by attorneys, co-parenting counselors, or parenting plan coordinators (PPCs) all work to come up with solutions that meet everybody’s needs.
Amen says that if it’s important for parents to come to a definitive agreement on specific matters, alternative dispute resolution or ADR may be the better option as this allows as much time as needed to discuss details. Reaching an agreement without going to court may work in the parties’ favor as their specific and detailed needs are most likely not going to be addressed by the court.
Parenting plan coordinators (PPCs)
For parties who are constantly disagreeing about decisions, and thus decisions aren't getting made due to stalemate, a parenting plan coordinator (PPC) can be designated as having authority to make certain types of decisions for you. PPCs are not only for emergency situations and can be used to help further along the process in a timely manner.
Not to be confused with a conservator, a PPC is sometimes a retired judge, former child custody evaluator, or child development expert with certain decision-making authority as stipulated by the involved parties. To choose a PPC, a party should seek referrals from a professional who has experience with high-conflict custody issues, such as a family law attorney, a family law mediator, or co-parenting therapist.
Keep in mind that a court cannot order parties to have a PPC — a PPC can only be put in place if the parties agree to it in a signed stipulation. In addition, the parties cannot request a PPC through a court; they need to stipulate to a PPC. Amen explains, “The writing would specify what types of decisions the PPC has authority to make, how the parties will present an issue to the PPC, how the decisions will be made, and if one party doesn't like the PPC decision, that they still have the right to go to court.” A PPC can be expensive, but they may be less expensive than litigation over custody disputes. Most cases do not have PPCs, but they’re not rare.
Going to court is expensive and can take a longer period of time than the PPC process, which is faster and allows for questions and disputes to be answered without getting attorneys involved and going back to court. For some emergency or time-sensitive disputes, PPCs may be able to come to a decision within 24-48 hours. Amen says that in high-conflict cases where there is a budget for a PPC, a PPC can sometimes be a good option when parties frequently have disputes about custody issues.
Stipulation
Even if a court case is filed, if the parties can reach an agreement outside of court, that agreement can be memorialized in a stipulation. A stipulation is a signed agreement by both parties that gets filed in court and becomes a court order. Amen explains that in many cases, the majority of issues are resolved through the stipulation without parties ever having to see the inside of a courtroom.
If the parties are both on the same page about an issue, it’s often a good idea to memorialize the agreement in a stipulation. As an example, she says, “Parties may want a stipulation that states they will only go to an out-of-network medical provider for their child's ADHD medication. If this is mutually agreed by them in writing, maybe they'd put that in a stipulation, and maybe they’d want to add language to the stipulation that says that they agree to continue using the child's current providers, even though they're out-of-network.” She goes on to say that stipulation can be very personalized to what the family’s particular needs are.
Amen adds a reminder to those trying to craft the terms of a joint legal custody stipulation: at the end of the day, it’s impossible to predict everything that’s going to come up. While this stipulation will provide the parameters to resolve a lot of disputes, if it doesn't, or if one party is very dissatisfied with the outcome, or if there’s been a change of circumstances, parties may still have to go to court to resolve this issue or attempt to resolve the issue through alternative dispute resolution.
If parties cannot reach an agreement and they decide court is the best option, they can file an RFO, or a request for order. First, a family court case needs to be filed. If the parties were married, the process is usually started by one party filing a petition for dissolution. If the parties were never married but share a child, the case is usually started by filing a petition to establish parental relationship.
Amen says, “Once a case is properly filed and served, the court typically has jurisdiction to make a custody order.” If there is already a pending court case, the party would need to file an RFO requesting that the court make specific orders, supported by reasons as to why the party is requesting this order. The other party then has an opportunity to respond in writing. The court may or may not conduct an evidentiary hearing, meaning the parties may or may not provide live testimony, but in order to get specific issues before the court, one party has to file an RFO requesting relief. Amen notes that every time a party files custody RFO, the court will automatically assign the parties a mandatory mediation date.
If a party files an RFO, that party must serve it on the other side at least 16 court days before the hearing. Realistically, Amen says if you file an RFO today in Los Angeles County, you would not be able to be assigned a court date that is 16 days away, as there is often a six- to eight-week wait for a hearing date because the courts are incredibly busy. If a truly urgent decision is needed faster than that, there’s an option to file an ex parte application, which is a written request for emergency orders. The party filing an ex parte is required to give the other side notice by 10:00 a.m. the business day before filing an ex parte application. To get an ex parte granted, the party needs to show that there is “an imminent risk of irreparable harm” if the ex parte is not granted. Otherwise, the filing party is denying the other side due process by having an issue determined with less than the normal statutory notice period.
Amen’s reminder: while joint legal custody gives both parents the right to make decisions about the health, welfare, and education of their child, some joint custody orders specifically say that parties need to mutually agree on certain matters.
Typically with a joint custody order, either party is authorized to make emergency decisions. The party making the decision just needs to inform the other party as soon as possible. Amen uses the example of a car accident to explain: “God forbid one parent is in a car accident with the child, they are rushed to the hospital, and decisions need to be made for the child’s emergency surgery. No one needs to file an RFO nor attend mediation to authorize this surgery. The parent who is there and has physical custody at the time is authorized to make an emergency decision.”
In the case of medical specificities, there will usually be a court order stating which parent will be the one to provide health insurance for the child. Amen says that when people file for divorce, health insurance is often already in place, possibly through an employer. The court order states that that party will need to continue to provide health insurance, or if they lose that health insurance, they will have to provide comparable insurance for the child.
Just because one parent provides insurance does not mean they have more decision-making rights than the parent who does not provide the insurance. So who gets to make decisions about the child’s health, welfare, and education? That will be determined by the legal custody orders in place. Sometimes, there will be situations where one parent has sole legal custody of the child and the other parent provides the medical insurance but doesn't legally have the right to make any medical decisions. Decision-making and insurance are independent from each other.
This can be a tricky situation. Shenson tells us that if a child needs therapy or medical services and one parent refuses to follow through, it could be seen as neglecting the child’s needs. In some cases, a court might step in and require both parents to follow the recommendations, or in extreme situations, adjust custody or parenting time. Most of the time, though, what happens is that one parent ends up handling all the therapy or appointments during their time with the child. That’s great because the child is still getting the help they need, but it’s not ideal. The best outcome is when both parents support the child’s therapy, so the child has consistency and progress across both homes.
This is another tough situation. Shenson explains that if a parent lives outside the area where therapy providers — like ABA therapists — offer in-home services, that parent might not be able to participate in the in-home sessions. But that doesn’t mean they have to be left out completely. “That parent should still be able to participate in parent consultation via Zoom, perhaps, or have the opportunity to drive their child to the provider's clinic to have sessions. I think there's ways to work around that if both parents are really committed to participating equally,” she says.
If your child qualifies for public benefits from state agencies, such as Regional Center and IHSS in California, then it's likely any services will be divided similarly to your physical custody agreement. Services are allocated to the child, not the parents, so benefits are provided in the location where the child resides — even if the child lives in two homes.
For example, in the case of IHSS, Shenson says, “If both parents qualify [as parent providers] and share custody, then those IHSS hours are going to be split between the homes, possibly based on time share, but also based on the child's needs in each of those home settings. In the case where parents have wildly different opinions on the child's needs, I would say that it needs to come down to the assessments conducted by the professionals and the objective determination of what that child's needs actually are.”
How benefits are handled will vary by agency and even by county, and family law attorneys are not always familiar with public programs for individuals with disabilities, so you may also need to consult a disability lawyer. If you as a parent are not agreeing with orders that are being made, the fix will not come in family court — it will likely have to be through the request of an administrative hearing. Consent to having services is also sometimes an issue — if one parent is withholding consent, an agency might stop all services, regardless of the custody agreement.
Arroyo explains, “It's super important that people agree,” and reiterates that it's very important that parents going through separation or divorce are aware of this. Where parents disagree, over IEP services for example, the consent issue can often prevent the child getting services. Arroyo suggests that parents should go to Family Court and decide who is the Educational Rights holder. His advice is that whatever is going on with your divorce, “don't disagree over your child’s services.”
Winn states that it is possible for family law courts to allocate one party the educational rights, while both parties have legal rights. “Most often, the educational rights are shared between the parents, [but] the allocation of educational rights can depend on various factors, such as the best interests of the child and the parents’ ability to make decisions cooperatively.” In a case where one parent is awarded the educational rights and the parents disagree on an educational decision, “the parent without those rights may have limited ability to prevent the other parent from exercising them. However, the specific legal procedures and options available [for the parent without educational rights] may vary by jurisdiction.”
In the case where a school decides to file due process and the parties are in disagreement about school decisions, the court may need to intervene to resolve the matter. “If the parent without educational rights sides with the school, the court is still most likely to weigh heavier on the educational rights holder,” Winn says. If both parties share educational rights and one agrees with the school while the other does not, the school may use the one party’s agreement to their advantage in resolving the dispute.
In families where both parents share educational rights, Shenson says, “It really puts the school district in the position of choosing between two parents. The school is obligated to uphold those parental safeguards under IDEA. But what if two parents with equal legal rights are asserting their safeguards differently over the same issue? My concern as an advocate is it does start to put the district in the position of decision maker, and that is not how IDEA is set up. The school may then choose between the parents, and they may make that choice based on self-serving motives. Then, the child’s access to the services that they may have qualified for gets delayed. Parents have to go back to family court and adjudicate that matter, and in the time that it takes for all of that to play out again, the child's not getting the services they need.”
Shenson’s recommendation is for both parents to bring their child’s preferences into the decision if possible: “When there's conflict, let the child have some input here so that we're making a decision that's child focused and not based on what mom and dad prefer. When in doubt, make sure you're looking at it through a child-focused lens, even though I know that's easier said than done in these situations, but I think that will help guide you toward the right decision.”
German tells us that schools are not under any obligation to be aware of the parents’ marital status or the terms of their settlement, so often they will accept one parent’s signature as consent for an assessment or an IEP.
Shenson adds, “Technically, the school can go with one signature. But will they go with one signature? That's where it becomes very case dependent.” She highlights that this is where the two bodies of law conflict when it comes to joint legal custody: “On the education side, they can technically move forward with one signature. But on the Family Court side, joint legal custody typically means that both parents have to agree and consent to changes in their child's educational plan. I do think that it's important to remember that each parent with legal custody still has their parental safeguards in place. So you do have the right to sign with exceptions and you have the right to file a complaint or even enter into due process. But technically, yes, the school can move forward with one signature.”
Shenson explains that in California, the family code creates a rebuttable presumption: if a parent has been found to perpetrate domestic violence, it is generally not considered in the child’s best interest for that parent to have sole or joint legal or physical custody. In these cases, the victim parent is more likely to receive sole legal custody, including the right to make decisions about education. But this isn't a quick or easy process. Shenson shares a few things to consider:
What many in the advocacy community don’t always realize is how long it can take for the court to make these determinations. It can often take months or even years before custody issues are officially resolved. During that time, the child’s educational needs cannot be put on hold. Practically, this means that both parents may still have joint legal custody: both are expected to attend IEP meetings and make decisions, even though domestic violence dynamics are in play.
The real concern is that this situation can put children at risk of delayed or reduced access to essential services while the legal process unfolds. Ensuring a child’s educational needs are met during this time requires careful navigation and, often, advocacy support.
If a parent feels unsafe, can they stop the other parent from attending their child’s IEP meetings?
Shenson tells us that unless there's a restraining order, you can't prevent the other parent from being there. “Sometimes, parents will come to me and they'll have educational rights or sole legal custody, and they'll say, ‘Can I prevent the other parent from attending?’ And you can't. They may not have the right to sign consent, but they still have the right to participate.”
Can you have two separate IEP meetings?
Shenson continues, “The next question that I frequently get is, ‘What if we have two separate meetings, one for mom and one for dad?’ I never recommend that and I have a number of reasons why. Number one, in California and several other states, parents have the right to audio record their child's IEP meeting. But you can't audio record a meeting that you didn't attend. And so, if you're not attending all the meetings, then you, as a parent, have an incomplete record of your child's IEP meeting, and that's going to be that could potentially be a problem, especially if you had to file due process. But again, you don't want something decided at a meeting that you chose not to participate in, which could also happen.”
FERPA, the Family Educational Rights and Privacy Act, is a federal law that protects the privacy of students' educational records. Both parents generally have the right to access and review their child’s records, but no parent can unilaterally alter or falsify records without the other’s consent or a court order, especially in cases of joint legal custody. Shenson tells us that the most common way this happens is an attempt to exclude the biological parent in favor of a new spouse or a new partner, such as changing who the emergency contact is. What can you do if this happens?
“That's easily remedied with a court order that will clarify who's who and who has legal custody,” Shenson says. “But oftentimes, parents try to resolve that at the front desk level. They'll try to work through that with the office staff, and typically those employees are not trained to handle that kind of issue. So I think the best thing to do is go directly to the district office and make sure you're talking to somebody with the authority to modify that and to understand the problem. And make sure that you have a copy of your court order so you can show them that you are the biological parent with legal custody rights and that you should be included on any of your child's documents.”
Whether or not parties will need an attorney to resolve educational decisions will greatly depend on their individual situation. Parties may need an attorney in situations including custody disputes, child support issues, special education needs, possibly dealing with disputes with schools or school districts, or any legal proceedings related to the welfare of the child.
Parents should be aware that attorneys have strict ethical obligations that prevent them from acting against the interest of a current or former client. If your separation or divorce gets contentious, it can be difficult for a special education attorney to represent you without a conflict of interest arising. A couple might have a retainer with a special education attorney signed by both parents, but once they start to disagree on how to navigate the educational process, the special education attorney will likely be forced to drop both as clients. If parents are not able to work together on special education issues, they need the assignment of educational and legal rights clearly set out in a settlement or court order, and many times each parent will need separate representation. However, German explains that many divorced couples are able to work together in the interest of the child without their family law issues posing a problem.
Amen states, “Part of our jobs as attorneys is to know what we do know, but also know when something exceeds our area of expertise, and then know who to bring in to advise on that issue.” As a certified family law specialist, she says educational rights and public benefits, for example, are both separate areas of practice, and both are separate and distinct from family law. If an issue comes up in Amen’s cases that requires legal expertise outside of family law, she typically advises clients to consult with an attorney who has specific expertise in that practice area. She says, “I would never want to be advising a client incorrectly on another area of law, particularly when it impacts their child. I’d want to make sure we’re bringing in somebody with expertise in that area to fill in whatever gaps there are between family law and the client’s questions.”
As Shenson says, “I think that really depends on what the disagreement stems from. So sometimes disagreements come from having different perspectives, like one parent may want to take a more neurodiversity-affirming approach, or the other parent may be looking at the medical model approach, for example. But that's very different than situations that have domestic violence involved, because oftentimes, most of the time in those situations, disagreement is more about a dynamic of power and control. So in either situation, I do feel that bringing an advocate who is comfortable working with those types of dynamics can make a big difference. You know, they can act as a neutral facilitator, keeping the focus on the child instead of the conflict, because at the end of the day, what you really need to keep the focus on is ensuring that the conflict doesn't result in your child losing access to essential services.”
Shenson also adds that advocates can help inform legal teams, or people who don’t know educational systems. Sometimes the court brings in outside professionals to take a closer look at your child’s needs. The tricky part is that family court experts usually know family law, not disability laws. They don’t have the same training as a special education attorney who understands IDEA, Section 504, or the Lanterman Act in California. She says, “Family law, in my opinion, wasn't specifically written with special needs children in mind. We know it is a very different thing raising a special needs child in terms of the sheer amount of decisions that have to be made on a regular basis. I don't have the solution. I just know that there are gray areas, and most of the time, the way that plays out is our kids not getting access to what they need in a timely manner.” That’s why it can really help to have an advocate or someone familiar with disability laws by your side — to make sure your child’s needs are explained clearly to the people making decisions.
Shenson explains that she always reminds parents that their child's teachers and the members of the IEP team are not your therapists or your friends; they're your child's educators. “Bringing personal conflict into those spaces can really harm the relationship with the school and negatively impact collaboration or open communication at the IEP table,” she says. “That tends to happen a lot, especially if parents had a really friendly relationship with school employees prior to the IEP process starting.”
This can become riskier with providers. As Shenson says, “You really need to maintain that boundary with private providers, doctors, therapists, etc. It becomes even riskier to bring the conflict in [with them], because, unlike the school, if they start to feel uncomfortable, or they feel that the conflict is negatively impacting their ability to treat, they can terminate care. They can just quit. And especially if you live in a rural area or an area where there just aren't a lot of service provider options, that could literally mean your child losing access to that service entirely, not just having to find a different doctor. And so you only can control your own actions, obviously. But if you are doing that and following recommendations and not participating in the conflict, and the other parent is creating that level of conflict, then I think that that's an appropriate time to seek intervention from the court.”
We asked CLA attorneys Omana and Abshier what tips they have for parents navigating divorce and co-parenting within the court system:
Shenson also recommends carefully screening, right from the start, any lawyer you want to hire to make sure they have the experience required to support you. Here are some things to ask when you’re consulting with potential lawyers for your family court case:
Why is it so important to screen lawyers? As Shenson explains, “You don’t want to be training your lawyer, because that can ultimately affect their ability to clearly and effectively communicate your child’s needs to the court.” And that’s where issues often begin. Without careful screening upfront, families can find themselves months into a case before realizing their lawyer doesn’t fully understand their child’s needs — or know how to articulate them to the court in a meaningful way. At the end of the day, the goal is to make sure the court receives clear, accurate information about your child, from someone who truly understands how to present it.
And, from a cost perspective, you don't want to be paying for time spent to educate your lawyer.
“Make sure you choose wisely, “ Shenson says, “Somebody who you know already has a foundational understanding of those things.”
Do you have experience navigating divorce and co-parenting your child with disabilities? We’d love to hear about your experience and advice for other families. Get in touch and email us.
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