Endrew F. - What have we learned?


In this newsletter I have previously discussed the Supreme Court's decision in Endrew F. The cases interpreting and applying the Endrew F. standard have continued to grow and expand the definition of what is required of school districts in their effort to provide a free, appropriate education to students.

The following are bullet points and links to what we have learned since the Endrew F. decision and hopefully will provide a blue-print for parents to advocate for students.
  1. The IEP must be individualized. This means that the IEP document must address your child's unique needs. High achieving or high ability students are often provided a one size fits all program. This response is common. Schools may state that this is what we have, or this is our program.
  2. The IEP must be reasonably calculated to help your child make progress.
  3. The student must be afforded the opportunity to meet challenging objectives.
  4. A cookie cutter approach to checking the boxes is not going to pass legal muster.
  5. Parent input is essential.
  6. The IEP must be ambitious in light of your child's circumstances.
How do I make this happen?
  1. Develop an Agenda for the IEP.
  2. Have current data regarding your child's abilities and functioning.
  3. Have a clear sense of what are the appropriate goals and objectives for your child.
  4. Set the bar appropriately high for your child.
  5. Don't settle for the response that " this is what we have" or "this is what our school does."
  6. Be clear about the goals.
  7. Remain calm but firm.
ADA.gov American's with Disabilities Act

Endrew F. Supreme Court Decision

High Stakes Testing and Accommodations
With the emphasis on high stakes testing as well as the intense and overdone competition at many high schools, there is a push back from school districts and a tendency to deny extended time for students with good grades. 
It is not uncommon for parents to come to my office for a consultation for help in navigating their child's need for testing accommodations. Often, the student may present as a very hard- working student who gets good grades but may report that they do very well on their homework and spend an excessive amount of time studying. At some of the more competitive schools this may mean that they spend an average of 4-5 hours per night just to keep up. They are not failing or even on the surface struggling but the effort is disproportionate. Additionally, it is not atypical for their grades on tests to be lower than their homework and other projects outside of a testing situation.
In my office, the student may say that they studied very hard for the tests and during the test they were frustrated because they were afraid of running out of time or simply were freezing under the pressure of a timed assessment.

Frequently Asked Questions Regarding Testing Accommodations:

Do I need a current evaluation?
Typically, the answer is yes.

What kind of documentation do I need?
Examples:

Recommendations of highly qualified professionals;

Proof of past testing accommodations;
Observations by educators;
Results of psycho-educational or other professional evaluations;
An applicant's history of diagnosis
An applicant's statement of his or her history regarding testing accommodations
[Note: Not all of these are necessarily required]

Do I need to have an IEP or a 504 Plan to qualify for testing accommodations?
Although a student may have never previously received testing accommodations through an IEP, Section 504 plan or a formal private school policy, she may nevertheless be entitled to extended time for the standardized exam. An absence of formal testing accommodations does not preclude a candidate from receiving testing accommodations.

What accommodations are available on tests?
The need for accommodation type is highly individualized. Some examples of accommodations are as follows:
  • Eliminate the use of a scantron
  • Extended time
  • Oral Testing
  • Use of a basic calculator
  • Large print test
  • Use of a scribe
  • Wheelchair access
  • Screen Reading Technology

Resources:

www.ADA.gov

ADA on testing accommodations

www.understood.org What is the difference between an IEP and 504 Plan?
Statutory Factors that Judges utilize in the 
Allocation of Parent Responsibilities: Decision Making

Parents can certainly agree to share decision making and allocation of time. However, in the absence of an agreement, courts will look to the factors outlined in the statute in determining parenting time and decision making. The court may even appoint an expert to make findings regarding the allocation of parenting time and allocation of parental responsibilities with the applicable factors in mind under the statute.
 
Trying to reach an agreement with the other parent (when possible) is much better for your child and also affords you control over the outcomes. If you are unable to agree, the Judge will take into consideration the specific facts in your case and how they fit into the statutory framework for allocating parenting time and decision making. Of course, not every case will necessarily involve all the factors.
 
The statute below enumerates the factors the court considers. However, it needs to be understood and read in the context of other statutes. Section 600, 602, 602.1, 604.10 and 603.10

750 ILCS 5/602.5) 
    Sec. 602.5. 
Allocation of parental responsibilities: decision-making.
    (a) Generally. The court shall allocate decision-making responsibilities according to the child's best interests. Nothing in this Act requires that each parent be allocated decision-making responsibilities.
    (b) Allocation of significant decision-making responsibilities. Unless the parents otherwise agree in writing on an allocation of significant decision-making responsibilities, or the issue of the allocation of parental responsibilities has been reserved under Section 401, the court shall make the determination. The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child. Those significant issues shall include, without limitation, the following:
(1) Education, including the choice of schools and tutor
(2) Health, including all decisions relating to the medical, dental, and psychological needs of the child and to the treatments arising or resulting from those needs.
(3) Religion, subject to the following provisions:
      (A) The court shall allocate decision-making responsibility for the child's religious upbringing in accordance with any express or implied agreement between the parents.
     (B) The court shall consider evidence of the parents' past conduct as to the child's religious upbringing in allocating decision-making responsibilities consistent with demonstrated past conduct in the absence of an express or implied agreement between the parents.
     (C) The court shall not allocate any aspect of the child's religious upbringing if it determines that the parents do not or did not have an express or implied agreement for such religious upbringing or that there is insufficient evidence to demonstrate a course of conduct regarding the child's religious upbringing that could serve as a basis for any such order.
(4) Extracurricular activities.
    (c) Determination of child's best interests. In determining the child's best interests for purposes of allocating significant decision-making responsibilities, the court shall consider all relevant factors, including, without limitation, the following:
(1) the wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to decision-making;
(2) the child's adjustment to his or her home, school and community;
(3) the mental and physical health of all individuals involved;
(4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;
(5) the level of each parent's participation in past significant decision-making with respect to the child;
(6) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;
(7) the wishes of the parents;
(8) the child's needs;
(9) the distance between the parents' residences, the cost and difficulty of transporting the child, each parent's and the child's daily schedules, and the ability of the parents to cooperate in the arrangement;
(10) whether a restriction on decision-making is appropriate under Section 603.10;
(11) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(12) the physical violence or threat of physical violence by the child's parent directed against the child;
(13) the occurrence of abuse against the child or other member of the child's household;
(14) whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and
(15) any other factor that the court expressly finds to be relevant.
    (d) A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child's health and safety during that parent's parenting time.
    (e) In allocating significant decision-making responsibilities, the court shall not consider conduct of a parent that does not affect that parent's relationship to the child. 
(Source: P.A. 99-90, eff. 1-1-16.)
Estrangement and Parental Alienation are NOT the Same Thing

In my years of practicing family and working with all kinds of family structures, in my divorce practice as well as in the other areas of law that we deal with in our office (e.g. special education, mental health law, juvenile law), the words alienation syndrome are often mentioned by clients either during a divorce or in the aftermath and ongoing conflict. It is important to distinguish the phenomena and they are quite different.

Estranged Children:
The difference between an estranged child and an alienated child is that an estranged child has grown apart from the parent for reasons that are, to be blunt, reasonable and realistic. An alienated child, however, is the victim of one parent's efforts to destroy the child's relationship with the other parent.
  An estranged child is either absolutely ambivalent about the other parent or enraged by the other parent. These feelings are, however, justified by the child's experience of the separation or by the child's experience of that parent.
These children are usually estranged as a result of:
  • witnessing violence committed by that parent against the other parent,
  • being the victim of abuse from that parent,
  • the parent's persistently immature and self-centered behavior
  • the parent's unduly rigid and restrictive parenting style, and/or
  • the parent's own psychological or psychiatric issues.
The point here is that the child's experiences make the child's rejection of a parent  reasonable , and an adaptive and protective response to the parent's behavior.
  Alienated children:
There is an ongoing debate about whether or not parental alienation syndrome even exists. On both sides of the aisle you will find strident detractors and supporters. The recent research would indicate that alienation is a term that describes a wide spectrum of behavior and attachment by children to their parents.
Whatever the cause or the existence of syndrome, there are families who are damaged by the conduct of the parties in a divorce and in subsequent parenting disputes.
There are no sound bites or easy fixes. Resources exist for parents who are struggling to connect with their children and to navigate a high conflict divorce and its aftermath.
Resources:
Books:
Parental Alienation: The Handbook for Mental Health Professionals, by Lorandos, D.
High Conflict Custody Battle, by Baker, Amy J.L.
Changes to the New Tax Law that will Impact how Maintenance and Alimony is Taxed

In the past, maintenance or what has been formerly referred to as alimony was taxable to the person receiving the payment (obligee) and deductible to the person who was paying (obligor). Federal law determines the taxability of maintenance. As of December 31,2018, all of this is going to change. After this date, if an award of maintenance is deemed appropriate by a judge or by agreement, maintenance will no longer be income to the receiving spouse and will not be deductible by the paying spouse. This may significantly impact how divorcing couples choose to draft their agreements and make financial decisions in the context of divorce negotiations.

The ability to deduct maintenance payments has in many cases been a motivator to the higher wage earner to settle a case by paying the spouse with the lower income more substantial support. Removal of this option may make it more difficult to resolve cases.

The person receiving maintenance who no longer has the ability to declare this as income will potentially be in a lower income bracket and may be eligible for the child tax credit or other tax benefits.

Resource:

STAY CONNECTED:

Micki Moran
The Child & Family Law Center of the North Shore
1950 Sheridan Road, Suite 201
Highland Park, IL 60035
Phone (847)926-0101
Fax (847)926-8500