707 KAR 1:002. Definitions. Section 1. Definitions. (43) "Parent" means: (a) A biological or adoptive parent of a child;
(b) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child, but not the state if the child is a ward of the state;
(c) A person acting in the place of a biological or adoptive parent such as a grandparent, stepparent, or other relative with whom the child lives, or a person who is legally responsible for the child’s welfare;
(d) A foster parent if the biological or adoptive parents’ authority to make educational decisions on the child’s behalf has been extinguished and the foster parent has an ongoing, long-term parental relationship with the child, is willing to make the educational decisions required of parents under 707 KAR Chapter 1, and has no interest that would conflict with the interests of the child;
(e) A foster parent if the biological or adoptive parents grant authority in writing for the foster parent to make educational decisions on the child’s behalf, and the foster parent is willing to make educational decisions required of parents under 707 KAR Chapter 1, and has no interest that would conflict with the interests of the child; or
(f) A surrogate parent who has been appointed in accordance with 707 KAR 1:340, Section 6.
Parent, Adoptive Parent, Legal Guardian
Biological or Adoptive Parents: Either parent, biological or adoptive, has parental rights unless there has been a judicial order that limits or terminates those rights.
Legal Guardian: A Guardian is a person appointed by a court to manage the affairs of a child. A copy of the official court order must be obtained and attached to the Determination of Educational Representative form to verify the student has been appointed a legal guardian. Guardianship remains in effect until the court reverses the order.
Permission to Act as Parent
Permission to act as the parent requires a written notarized document from a parent or guardian allowing the person to make educational decisions. Kentucky Power of Attorney for Minor Child (Form AOC-796) is a form that a parent may fill out designating another to make decisions on behalf of their children in the event they are going to be unavailable to make those decisions for their child. This form is useful if parents anticipate being away from their child for a period of time, or there is an illness that requires long-term hospitalization, or maybe a military assignment.
Married Student
A student who is married (regardless of age) is considered emancipated and represents him/herself in educational decision-making. A copy of the marriage certificate documenting the student meets the criteria as educational representative must be attached to the Determination of Educational Representative form.
18 Years of Age
707 KAR 1:340, Section 6 Representation of Children (11) When a child with a disability reaches the age of majority, all rights under 707 KAR Chapter 1 shall transfer from the parents to the child, unless the child has been declared incompetent under KRS Chapter 387 in a court of law. An LEA shall notify the child with a disability and the parents of the transfer of the rights.
Documentation of notice is indicated on the section titled "Transfer of Rights at Age of Majority"of a student's IEP.
Examples of district forms that may be used to also provide notification of transfer of rights at the age of majority may be found HERE.
18 Years of Age Represented by Guardian
Minors who reach eighteen (18) years of age are now of majority and, under the law, allowed to make personal decisions. However, due to mental limitations in some cases, a student may be declared incompetent by the courts resulting in a guardian assignment. An official court order of the appointment for guardianship should be obtained and attached to the Determination of Educational Representative form.
Emancipated
There are three ways by which a student may become emancipated in Kentucky:
At the "age of majority", which is eighteen (18) in Kentucky, a child ordinarily becomes emancipated automatically.
A person under the age of 18 may become emancipated with the consent of the parent(s). A parent’s consent does not need to be declared or written down. It can be implied by the parent’s acting or failing to act to govern or support the child. A parent emancipates their minor child by consenting to the child’s marriage. Likewise, if a parent allows a child to move out and become self-supporting, the child is impliedly emancipated. However, an implied emancipation can be revoked if the parent later changes their mind. In doubtful situations, it is the parents’ wishes that determine whether an emancipation occurs or has occurred.
A person under the age of 18 may become emancipated by court order.
Surrogate Parent
707 KAR 1:340, Section 6 Representation of Children. 3) An LEA shall ensure the rights of a child are protected by appointing a surrogate parent to make educational decisions for the child if: (a) No individual can be identified as a parent as defined in 707 KAR 1:002; (b) An LEA, after reasonable efforts, cannot discover the whereabouts of the parents; (c) The child is a ward of the state; or (d) The child is an unaccompanied homeless youth as defined in the McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11431. (4) The LEA shall keep a record of the reasonable efforts it made to discover the whereabouts of the parents, such as: (a) Detailed records of the telephone calls made or attempted and the results of those calls; (b) Copies of correspondence sent to the parents and any responses received; and (c) Detailed records of visits made to the parent’s home or place of employment and the results of those visits. (5) An LEA shall have a procedure for determining whether a child needs a surrogate parent and assigning a surrogate parent to the child. The surrogate parent of the child shall have all the rights afforded parents under Part B of IDEA, 34 C.F.R. Part 300, and 707 KAR Chapter 1, to make decisions about educational issues for a child. (6) An LEA shall have a procedure for selecting surrogates. A surrogate: (a) Shall not be an employee of the Kentucky Department of Education, the LEA, or any other agency that is involved in the education or care of the child; (b) Shall not have any personal or professional interest that conflicts with the interests of the child; and (c) Shall have knowledge and skills that ensure adequate representation of the child. (7) A person who is otherwise qualified to be a surrogate parent shall not be considered an employee of the LEA solely because he or she is paid by the LEA to serve as a surrogate parent. (8) In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to the criteria listed in until a surrogate parent can be appointed that meets all the requirements of this section.
Commitment to Cabinet for Families and Children or Department of Juvenile Justice
If the child has been committed to the Cabinet for Families and Children (CFC) or the Department of Juvenile Justice and parental rights have not been terminated, the ARC Chairperson involves the biological or adoptive parent in educational decision-making and no surrogate parent is assigned.
If the ARC Chairperson determines that parental rights have been terminated by the court, the ARC Chairperson contacts the DoSE and obtains a certified or attested copy of the court order or letter from an attorney for Cabinet for Families and Children verifying that parental rights are terminated. The ARC Chairperson files the copy of the court order or attorney letter into the educational record of the child.
As indicated in 707 KAR 1:340 (6)(a), employees of CFC may not serve as a surrogate parent. The following resources may assist districts when needing to provide verification to agency individuals believing they can serve in the role of the parent.
Resources for Assigning & Training Surrogate Parents