NASET Q & A Corner
Questions and Answers on Legal Requirements for Being a “Parent” Under Federal Law
Introduction
Perhaps the most important element afforded under the Individuals with Disabilities Education Improvement Act (IDEIA) is the right to parental participation at almost all stages of the special education process. To increase the odds that each child has a parent in the special education process, IDEIA does define the term “parent” but does so in a broad way. The focus of this issue of NASET’s Q & A Corner is on defining who is a parent and the guidelines mandated under the federal law, IDEIA.
Who is a “Parent” as defined under IDEIA?
Perhaps the most important element afforded under IDEIA is the right to parental participation at almost all stages of the special education process. To increase the odds that each child has a parent in the special education process, IDEIA does define the term “parent” but does so in a broad way.
Under IDEIA (34 C.F.R.§300.320; see also 20 U.S.C. §1401 (23), a parent is:
1. A natural, adoptive or foster parent of a child (unless a foster parent is prohibited from serving as a parent)
2. A guardian
3. An individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives.
4. An individual assigned to be a surrogate parent
What is a “natural” parent?
A natural parent is the biological parent.
What is an “adoptive” parent?
An adoptive parent is a person who legally adopts a child of other parents as his or her own child. Adoption is the official transfer through the court system of all of the parental rights that a biological parent has to a child, along with an assumption by the adopting parent of all of the parental rights of the biological parents that are being terminated and are assumed in their entirety by the adoptive parents, including the responsibility for the care and supervision of the child, his/her nurturing and training, physical and emotional health, and financial support.
Are biological or adoptive parents are always presumed to be authorized to make educational decisions for the child even if other individuals also meet the definition of parent?
Yes. The biological or adoptive parents are always presumed to be authorized to make educational decisions for the child even if other individuals also meet the definition of parent, unless a judicial order states specific individuals are to make the child’s educational decisions. 34 C.F.R.§300.320
What is a foster parent?
A foster parent is a person who acts as parent and guardian for a child in place of the child’s natural parents but without legally adopting the child. Under IDEIA, a foster parent can act as a parent unless state law prohibits the foster parent from acting as a parent
What is a guardian?
A guardian is a non-parent to whom the Court gives authority to take responsibility for the care of a child. In special education, a guardian is a person who has the legal responsibility for providing the care and management of a child with a disability.
An appointment of guardianship may be permanent or temporary. Guardians are often appointed for children when the parents are deceased.
What is a surrogate parent?
IDEIA requires each State to have specific procedures to protect the rights of the child whenever:
1) the parents of the child are not known; or
2) the [school district] cannot, after reasonable efforts, locate the parents; or
3) the child is a ward of the State under the laws of that State (e.g., in the custody of a public child welfare agency); or
4) The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(6)).
The protection must include the assignment of a surrogate parent. 34 C.F.R.§300.519
A surrogate parent is a person appointed by the Local Education Agency (LEA; the school district) or other responsible State agency to assume parental rights under the special education regulations in order to protect the student’s rights.
Are surrogate parents required to have knowledge and skills that ensure adequate representation of the student?
Yes. Unlike other “parents”, surrogate parents are required to have knowledge and skills that ensure adequate representation of the student.
What rights does a surrogate parent have under IDEIA?
When a surrogate is appointed, he/she has all the rights and responsibilities under IDEIA
What are the guidelines for being a surrogate parent for a student?
The school must ensure that the surrogate parent serves in the following manner:
- has no conflicts with the interests of the child
- has knowledge and skills that ensure adequate representation of the child
- is not an employee of the Department of Education or any other agency which is involved in the education or care of the child
- is an adult
- resides in the same general geographic area as the child, if possible.
Is there a timeframe for assignment of a surrogate parent?
To ensure that children receive a speedy surrogate parent appointment, IDEIA now requires that schools make reasonable efforts to assign a surrogate parent within thirty (30) days after determining that a child needs a surrogate.
