Workshop Presented by: March 4, 2016 Scott C. Peters 6480 - PDF document

CUSTODY ARRANGEMENTS Ohio School Boards AND Association SPECIAL EDUCATION 2016 Special Education Law Workshop Presented by: March 4, 2016 Scott C. Peters 6480 Rockside Woods Blvd. South Suite 300 Cleveland, Ohio 44131 Phone: (216) 503-5055 Fax: (216) 446-6032 www.ohioedlaw.com

1 C USTODY A RRANGEMENTS AND S PECIAL E DUCATION 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 ohioedlaw.com

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. 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. B. Custody Basics  “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). ohioedlaw.com

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. ohioedlaw.com

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. ohioedlaw.com

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. ohioedlaw.com