Legal Question Of The Week - Week Of 9/12/13
By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut
The "Legal Question of the Week" is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: email@example.com.
Dear Legal Mailbag:
With the new school year, I have had not one but two different sets of parents give me family court orders specifying that custody is to be shared equally by the parents, with one of them in my town and the other living elsewhere. They want to pick which school district their child attends, but that seems wrong to me. If a child is to attend school in my district, I expect him or her to sleep in my district at least five nights a week. I mean, otherwise how could I ever say that the student is living in my town? So anyway, I told both sets of parents that under these circumstances they cannot enroll their children in my school, and they got really huffy about it and threatened to sue me. I told them to do what they had to do, but now I am having second thoughts. I donít want to start off the new year as a defendant in court. What say you, oh knowing and wise Legal Mailbag?
Having Second Thoughts
Dear Second Thoughts:
I am glad you are having second thoughts. Your initial standard for residence (and thus eligibility for free school privileges) is unworkable and illegal. Think about it. Under your rules, children living equally with both parents would not be entitled to attend school in either district, which of course cannot be the result. The question is not one of who has custody (indeed a child can reside with a non-custodial parent), but rather one of residence.
When parents share custody, it can be difficult to determine residence for school purpose. However, given the strong public policy in favor of education, all children have to be able to attend school somewhere. We must be careful, therefore, not to define residence too rigidly when students live with separate parents in two different school districts. Rather than applying a mathematical formula (which is particularly inappropriate in a fluid situation such as shared custody), we must ask a different question. That question is whether the child has a bona fide residence in your town. If the child does in fact live in your town (bedroom, clothes, toys, friends, etc.), then within reason the percentage of time the child spends the night in your town is irrelevant to the question of eligibility for school privileges. If I were you, I would call them right away and share this epiphany. They should forgive you promptly.