Who counts as a parent: divorced parents, foster parents and grandparents

By the IEP Atlas editorial teamLast updated November 1, 2026

Short answer

Divorced parents generally both keep their IEP rights, including going to meetings and seeing records, unless a court order says otherwise. IDEA's definition of parent also includes foster parents in most states, guardians, and relatives such as grandparents who the child lives with and who act as the parent. A court order naming who makes education decisions controls.

IDEA uses a broad definition of "parent." It includes a biological or adoptive parent, a foster parent unless state law or a contract says otherwise, a guardian, a person acting in the place of a parent (such as a grandparent or stepparent the child lives with), a person legally responsible for the child, and a surrogate parent.^[6]

When more than one person fits, the rules give an order. A biological or adoptive parent who is trying to act as the parent is presumed to be the parent, unless that parent does not have legal authority to make education decisions. If a court order names a specific person to make education decisions, that person is the parent for IDEA.^[6]

This page is general information. Family law is state law, and custody orders differ a lot. If your order is unclear, a family law attorney can explain it. Your other rights are covered in the special education rights overview.

Divorced and separated parents

Divorce by itself does not end a parent's IEP rights. A parent without primary custody is generally still a parent under IDEA and under FERPA, the student privacy law. FERPA says a school gives full rights to either parent unless it has a court order, state law or legally binding document that takes those rights away.^[1]

For records, the school may assume a parent can see their child's records unless it has been told that a court order or state law on guardianship, separation or divorce says otherwise.^[2]

What a custody order can change:

It may give one parent sole authority over education decisions. That parent then signs consents.
It may give joint legal custody. Both parents usually keep decision rights, and the school may need to work with both.
It may limit one parent's access to records or the school. The school follows the order once it has a copy.

Who counts as a parent: quick table

Person	Counts as a parent under IDEA?	What can change it
Biological or adoptive parent, married or divorced	Yes^[6]	A court order removing education rights
Foster parent	Yes, in most states^[6]	State law, regulation or a contract that prevents it
Grandparent or other relative the child lives with, acting as parent	Yes^[6]	A biological parent who is acting as parent is presumed first
Stepparent the child lives with, acting as parent	Yes^[6]	Same as above
Legal guardian	Yes, if authorized to make education decisions^[6]	A state agency guardian for a ward of the state generally does not count
Surrogate parent assigned by the district	Yes^[3]	A parent is found or the student reaches the age of majority
Child welfare caseworker	No	Not a parent under IDEA

Children in foster care

A foster parent can act as the parent for IEP purposes in most states. If the child's biological parents still hold education rights and are involved, the school may presume the biological parent is the parent, unless a court has limited their rights.^[6] If no one qualifies, the district assigns a surrogate parent. The surrogate parent guide explains how that works.

An annotated example

This example is made up. Compare it with your own custody order.

The family: Emma, age 9, has an IEP for a learning disability. Her parents divorced two years ago. She lives with her mother during the week and with her father every other weekend.

The custody order, section 4: "The parties share joint legal custody, including decisions about education and health care."

Note: "Joint legal custody, including education" usually means both parents keep their rights. Both can attend meetings and see records.

What the school did: It sends meeting invitations and progress reports to both parents. Both attend the annual IEP meeting in November.

Note: Ask the school to put both addresses in the system. Without that, notices may only go to one home.

When they disagree: Her father wants to consent to an occupational therapy evaluation. Her mother is unsure. The school asks for a copy of the order.

Note: With joint custody, federal rules do not say which parent wins a disagreement. Schools often accept consent from either parent unless the order requires both. State law and the order guide this, so a family law attorney can help if it becomes a dispute.

Questions you can ask the team

"Do you have a copy of our custody order on file?"
"Are both parents' addresses and emails in the system?"
"Will both of us get meeting invitations and progress reports?"
"If we disagree about consent, what is the district's policy?"
"Can I see my child's records even though I am not the custodial parent?"
"Can we hold one meeting with both of us, or do you need separate meetings?"
"Who should I contact if I am not getting notices?"

Next steps

Give the school a copy of the part of your custody order about education decisions.
Make sure both parents' contact details are on file.
Ask to see your child's records if you have not been getting them. The parent rights to records guide explains how.
Read who can see a student's IEP for how the school shares information.
Contact your state's Parent Training and Information Center for free help. You can find it through the Center for Parent Information and Resources.^[4]

The procedural safeguards and IDEA glossary entries define the terms used here.

Frequently asked questions

Can the school refuse to talk to me because I am the non-custodial parent?

Generally no. Under IDEA and FERPA, a parent keeps rights unless the school has a court order, state law or legal document that removes them. Bring a copy of your order if the school is unsure.

Can a grandparent sign an IEP?

A grandparent the child lives with, who acts as the parent, counts as a parent under IDEA. If a biological parent is also acting as the parent, the school generally presumes the biological parent first, unless a court order says otherwise.

Can a stepparent go to IEP meetings?

A stepparent the child lives with, who acts as a parent, counts as a parent under IDEA. A parent can also invite a stepparent to a meeting as someone who knows the child.

Use it in IEP Atlas

Sources

34 CFR Part 99: Family Educational Rights and Privacy, eCFR (National Archives)
34 CFR §300.613: Access rights, U.S. Department of Education (IDEA website)
34 CFR §300.519: Surrogate parents, U.S. Department of Education (IDEA website)
Center for Parent Information and Resources, CPIR
Parental Rights under IDEA, CPIR
34 CFR §300.30: Parent, Legal Information Institute, Cornell Law School

Written and checked by the IEP Atlas editorial team under our editorial policy. This guide describes general practice and federal rules. It is not legal advice; your state may add requirements, and the IEP team makes the decisions for each student.