Fuentes v. Board of Education

OPINION OF THE COURT

In this certified question case, we are called upon to decide whether a noncustodial parent retains the right to make decisions regarding the child’s education where the divorce decree and custody order are silent on this issue. The pertinent facts of this case are recited below.

In 2000, plaintiff believed that M.F.’s special education services and accommodations were inadequate and requested a reevaluation. When the Committee on Special Education for the Hearing, Handicapped, and Visually Impaired responded that M.F’s services were adequate, plaintiff requested a hearing from the Impartial Hearing Office of the New York City Board of Education to review that determination. In 2001, plaintiffs request for a hearing was denied based on his status as the noncustodial parent of M.F. The Office concluded that because plaintiff was not the “person in parental relation” (Education Law § 3212), he did not have the right to make educational decisions pertaining to M.F. and, consequently, did not have a right to request a hearing.

Plaintiff then commenced an action in the United States District Court for the Eastern District of New York alleging, among other things, that he was denied his right under the federal Individuals with Disabilities Education Act (IDEA) to a hearing to review the determinations of the Board of Education. After a dismissal, appeal, and remand on issues not pertinent to the certified question, the District Court dismissed plaintiffs case for lack of standing under the IDEA. On appeal, the United States Court of Appeals for the Second Circuit found that no precedent from this Court directly addressed the dispositive issue and certified the following question:

“Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decisions pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions” (Fuentes v Board of Educ. of City of N.Y., 540 F3d 145 , 153 [2d Cir 2008]).

The purpose of the IDEA is to provide “all children with disabilities” with a “free appropriate public education” ( 20 USC § 1400 [d] [1] [A]). Such an education must include “special

The Second Circuit previously discussed a noncustodial parent’s rights under the IDEA in Taylor v Vermont Dept. of Educ. ( 313 F3d 768 [2d Cir 2002]). In Taylor, a noncustodial parent demanded a hearing under the IDEA even though her Vermont divorce decree expressly provided that the custodial parent was “ allocate[d] all legal rights and physical rights regarding the choice of schooling for the child” (id. at 772). The court concluded that the federal statutory scheme required the courts to turn to state law “to establish which potential parent has authority to make special education decisions for the child” (id. at 779). Applying Vermont law, the court held that the noncustodial parent lacked standing to request a hearing under the IDEA because her “parental right to participate in her daughter’s education has been revoked by a Vermont family court” (id. at 782).

This case presents an issue unanswered by Taylor—namely, whether a noncustodial parent has the right to initiate a hearing under the IDEA where the New York divorce decree and custody order grant exclusive custody to the custodial parent but are silent as to who has the authority to make decisions concerning the child’s education. In Weiss v Weiss ( 52 NY2d 170 [1981]), a Judge of this Court first alluded to the principle that a custodial parent has the right, absent controlling contrary provisions in a separation agreement, to determine the child’s secular and religious education programs (id. at 177 [Meyer, J., concurring]). It is now well settled in the Appellate Division that, absent specific provisions in a separation agreement, custody order, or divorce decree, the custodial parent has sole decision-making authority with respect to practically all aspects of the child’s upbringing (see e.g. Matter of Fedash v Neilsen, 211 AD2d 1003 [3d Dept 1995]; Matter of De Luca v De Luca, 202 AD2d 580 [2d Dept 1994]; De Beer v De Beer, 162 AD2d 165 [1st Dept 1990]; Stevenot v Stevenot, 133 AD2d 820 [2d Dept 1987]; Bliss v Ach, 86 AD2d 575 [1st Dept 1982]).

Finally, we note the distinction between a noncustodial parent’s right to “participate” in a child’s education and the right to “control” educational decisions. Generally, there is nothing which prevents a noncustodial parent (even one without any decision-making authority) from requesting information about, keeping apprised of, or otherwise remaining interested in the child’s educational progress. Such parental involvement is to be encouraged. However, unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child’s education, a noncustodial parent has no right to “control” such decisions. This authority properly belongs to the custodial parent. In light of our discussion, we see fit to reformulate the certified question to read as follows:

“Whether, under New York law, the non-custodial parent of a child retains decision-making authority pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions.”

Accordingly, as reformulated, the certified question should be answered in the negative.

Judges Ciparick, Graffeo, Read, Smith and Pigott concur; Chief Judge Lippman taking no part.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and