Parent with Visitation Rights Only Does Not Have Standing to Bring Due Process Complaint

By March 14, 2017 News No Comments

The U.S. District Court for the Northern District of Illinois recently held that a mother, who is the non-custodial parent and only has visitation rights, does not have educational decision-making authority for the student and, therefore, does not have “standing” to bring a due process complaint against an Illinois school district. Smith v. Meeks, 69 IDELR 29 (N.D. Ill. 2016).

In this case, the mother of a student with ADHD filed a due process complaint against the school district regarding the student’s eligibility for special education services under the Individuals with Disabilities Education Act (“IDEA”). The mother alleged that the school district failed to find the student eligible under IDEA and develop an IEP. The student has a Section 504 Plan.

The Impartial Hearing Officer appointed by the Illinois State Board of Education dismissed the mother’s complaint for lack of standing because the student’s father is the custodial parent and, thus, has educational decision-making authority for the student. The Hearing Officer ruled that although the mother retains her parental right to obtain access to educational records regarding the student, she does not have standing to bring a due process complaint under IDEA because she lacks educational decision-making authority.

The District Court likewise found that, based on the custody orders in this case, the mother “merely had visitation rights” and the father “had custody of [the student] and the educational decision-making authority that accompanies it.” The District Court held that under such circumstances the non-custodial parent lacks standing under IDEA to file a due process complaint challenging the appropriateness of the school district’s substantive decisions as to special education eligibility, evaluations, services, or its provision of FAPE. Thus, the District Court ruled that the Hearing Officer did not err in dismissing the mother’s due process complaint for lack of standing.

This case highlights the importance of finding out which parent has educational decisions-making authority for a student—or if it is retained by both parents—when a student’s parents are separated or divorced.

Please contact Michelle Todd, Stephanie Jones, or Jennifer Mueller with your questions about how to navigate these situations as related to student and special education matters.

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