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Preparing for Divorce When You Have Children With Disabilities

Jasmine Avery | August 1, 2022

If you have children, one of the things you need to consider during a divorce is what you want your parental rights to look like. It does not matter if you have a child who is five years old or a child who is 15 years old; you want to make sure that you will have a voice when it is time to make important decisions. If you have a child who receives special education services, or accommodations in school, you should specifically discuss with your attorney how your divorce decree will allocate decision-making rights when it comes to your child’s education.

If you have ever sat in a special education meeting (often called an IEP meeting or an ARD meeting), you know just how many decisions go into designing your child’s education plan. When a child receives special services or support in school, it is important to specifically contemplate decision-making authority between the parents, the child, and the school district.

Joint Managing Conservator vs. Sole Managing Conservator: Which is better for special education services?

Your parental rights will be governed by the Final Decree of Divorce, and you need to make sure your conservatorship status matches the rights that you desire to maintain in the event of a divorce. Here are the benefits and disadvantages of each status concerning special education services.

What is Joint Managing Conservatorship?

In Texas, there is a presumption that joint managing conservatorship is in the best interest of the child. Joint managing conservatorship is the status which is most equal. Both parents will usually be awarded the same rights, with one parent being able to designate where the child will live as their primary residence for things like school enrollment, primary doctors, etc.

Joint managing conservatorship gives each parent the right to confer with the other conservator before making a decision concerning the health, education, and welfare of the children. If you have an amicable divorce and are confident in your and the other conservator’s co-parenting abilities, this type of conservatorship is a good option.

What are the advantages of Joint Managing Conservatorship?

The benefit of being a joint managing conservator when it comes to a child enrolled in special education services, is that there cannot be a decision made concerning the child’s education without you being a part of the conversation. You will always be aware of the status of your child’s education and be able to participate in its direction.

What are the disadvantages of Joint Managing Conservatorship?

One of the disadvantages of this type of conservatorship is that you cannot make decisions regarding education by yourself. If you are normally the parent who handles the special education meetings and conferences, and you are well-informed while the other parent is not, it will be somewhat frustrating to have to stop and confer with the other conservator before you’re allowed to make a decision. Further, if the other conservator disagrees with the route you recommend, you may need to list a school administrator as a “tie-breaker.”

What is Sole Managing Conservatorship?

Sole managing conservatorship gives one parent the exclusive right to designate the primary residence of the child and the right to make educational decisions, among a host of other exclusive rights.

What are the advantages of Sole Managing Conservatorship?

One of the biggest benefits of being a sole managing conservator is the sole managing conservator does not have to ask for permission or confer with the possessory conservator before making big decisions. If the divorce is contentious, sole managing conservatorship may be good so that there does not have to be much co-parenting discussion, just a possession and access schedule for the child that the two conservators can follow.

What are the disadvantages of Sole Managing Conservatorship?

One disadvantage of sole managing conservatorship is that if the divorce is contentious, this usually means that discussions about the children will be a huge issue. The other conservator may push back on a conservator attempting to have all the decision-making authority and cause emotional harm to the child in the process.

A way to combat this possibility is to speak with your child’s providers about their recommendations for supporting your child when you begin the new types of transitions associated with divorce. Below are the questions they can help answer:

  • Where do they recommend you drop off and pick up the child for each period of possession?
  • What types of conversations or activities might you have or do in preparing your child for a visit or a new type of exchange?

If you are particularly concerned about your child’s ability to process transitions, you might consider consulting a Board-Certified Behavior Analyst to develop daily transition plans. The sooner you can begin this conversation with your child’s team, the more prepared you will be as you negotiate the parenting plan contained within your final divorce decree.

Things to consider in planning for divorce

Why is it important to consider educational decision-making in your divorce decree? Under the IDEA, parents are given equal decision-making rights and authority. Unless a divorce decree specifically alters this presumption, your co-parent will retain equal rights, even if you are divorced. This is problematic in situations where both parties cannot agree on an educational decision. It is important to include language in your decree that considers what to do, and how a decision is made, if you and your co-parent cannot come to an agreement.

Additionally, you should include provisions as to how and when each co-parent must be notified of special education meetings and changes to the child’s plan. If a parent misses a single special education meeting, they might lack a great deal of information regarding the child. Consider including a provision that allows each parent to designate a competent adult to attend a special education meeting in their absence they cannot attend.

Finally, consider which parent may revoke consent for special education services. Under the IDEA, a parent may revoke their consent for services or an evaluation at any time. Unless the decree specifically contemplates this right, either parent will have the authority to unilaterally revoke consent.

If you are facing divorce and have concerns about how to address your child’s special needs during the divorce, working with a family law attorney at Goranson Bain Ausley may make the process more manageable.

To learn more about preparing for divorce when you have children with disabilities, please contact Jasmine Avery at (512) 454-8791.

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