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); 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.”
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 in accordance to Family Code Section 3040, subsection A, custody should be awarded according to the child’s best interest, which as generally stated in California Family Code Section 3011, subsection A, 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 or Covered California. 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.
In-Home Supportive Services (IHSS) is a common topic of discussion for parents legally separating in California. As Omana explains, “If both parents are available and eligible to be the child’s IHSS provider, hours may be assigned based on the child’s needs, when the child is in each parent’s home.” The service hours 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.
IHSS hours are dependent on what each specific county allows, as there are only so many hours allowable and can differ from county to county throughout California. If you, as a parent, are not agreeing with orders that are being made, the fix will not come in family court — it will have to be through the request of an administrative hearing. “It’s going to be a county issue; if orders are provided for one household and not the other but there’s an order that both parents will be exercising custodial rights over the child and therefore need services in both households, parents need to address this issue with an administrative hearing with the county, not in family court.”
Families whose child is eligible for Regional Center benefits will also need to discuss the child’s new living arrangements with their service coordinator. Lanterman Act services are provided to the child as the consumer and can be provided differently in each household that the child lives in.
Generally speaking, based on observation of current practice, Arroyo tells Undivided that Regional Centers typically split the respite between parent households. For example, if the couple had 20 hours a month, they might now have 10 hours per household. There is also the possibility that because each parent now only has the child part-time, they often need less respite and so possibly the family may lose respite hours. Arroyo says that the decision on respite being split between two households is really up to the Regional Center.
Consent to having services is also sometimes an issue — if one parent is withholding consent, even if just for one service, often the Regional Center will simply stop all services, regardless of the custody agreement.
Respite is really the only service that is primarily for the benefit of the parents. All other Regional Center services are for the benefit of the Regional Center consumer, i.e. the child. The only thing likely to change is how and where the services are provided.
While we spoke with attorneys in the CLA SoCal Family Law Unit, CLA SoCal has a group of attorneys dedicated to the public benefits area of law. For those who live in Orange or Southeast Los Angeles County, you may contact the CLA SoCal hotline at 1-800-834-5001 with any questions. If you are eligible, their team will get back to you with legal advice and/or provide direction.
If you live outside of CLA SoCal’s service area, there are legal aid offices throughout California, and throughout the country, and you may call and ask for a referral to the appropriate legal aid office if needed. Additionally, legal aid organizations like Legal Services of Northern California have put out resources for parents navigating these complexities and summary guides in the past, such as a parent provider guide.
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. 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.
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.
What if a parent or lawyer wants to bring in another specialist?
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.”
We asked CLA attorneys Omana and Abshier what tips they have for parents navigating divorce and co-parenting within the court system:
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.
Save your favorite resources and access a custom Roadmap.
Get Started
