We’ve Moved. Can My Children Stay In Their Old School?

This sounds like a simple question with a simple response, but as with all things legal, it can get quite complicated.

What if parents divorce and the Parent where Student lives moves to a different school district? Can the Student remain in their old school? What if Student moves in with relatives or guardian in a different district? A Student can have only one domicile at a time. If there is “shared custody,” courts generally hold that Student is domiciled where they live for the majority of the school year.

New Jersey law states a student may attend the school district in which his or her parent or guardian is “domiciled.” So what does that mean exactly? It refers to one’s permanent residence and the domicile of the Parent/guardian is the deciding factor. Aha! What about that summer home at the shore—does that count as another potential domicile? No, the law states there can only be one domicile, regardless of how many residences you own or property taxes you pay.

But let’s say Parent 1 who has physical custody of Student moves to District X temporarily, contemplating that they might buy a house in that district. Or they bought a plot of land with the future intention of building a house, or moving into that house or apartment?

Sorry, Parent 1 must be actually physically present in the new location, concurrent with their intention to remain.

What if you move into an Extended Stay in the district until your new domicile is ready to occupy? That’s fine, with two warnings:

1) an anticipated residency can’t drag on, even if it isn’t your fault (some districts have grace periods for these situations); and

2) as long as this residency is not a ruse “solely for purposes of the student attending the school district of temporary residence.”

My school had just such a case, with Parent 1 living in New York City and the chauffeur (yes, this happened) lived in a rented house that Parent 1 stated he “intended to buy.” The chauffeur lived there with Student to permit them to go to school with old friends. This was not legal and Student would have been told to leave the district. Some districts near state lines have guards checking out-of-state license plates dropping students off daily to confirm legal domicile. And it is the showing of Parent’s subjective intention that will win or lose such a finding.

What about the divorced or separated parents? Often we look to written agreements determining where Student will attend; absent any legal document, NJ state regulations apply and there are very specific legal findings in these situations. The intriguing and often frustrating part of law is that each scenario is fact-specific. So your neighbor’s case may appear to be just like yours, but you can’t decide that your situation will resolve in the same way.

Now let’s get to SPECIAL EDUCATION issues.

If your Student has a disability, they may attend a public or private school in a different school district — at the expense of their home school district — if their Individualized Education Program (IEP) provides for such “out-of-district” placement. This is where the services of CurbeloLaw come in to assist you. Our attorneys fight on your behalf so your local Board of Education pays for this new school placement.

Does your Student have an IEP? Did the District agree to pay for “out-of-district” placement? Or perhaps your Student is currently in a residential or juvenile detention facility when domicile of parent is not an issue. Other circumstances include if you are domiciled in an Interdistrict Public School Choice area; if Student is enrolled in a charter or vocational-technical school outside the district; in a remote area of NJ where getting to the home district is too difficult; or if the local district lacks certain facilities necessary for Student.

Of course you can also pay privately to attend any public school unless districts consider this “poaching” and limit or forbid it. And if you teach at a school, many districts grant your Student tuition-free enrollment.

There is a policy known within the special education law as “ageing out” when Student turns 18. But with many disabled Students, they cannot fairly be treated as adults capable of making their own educational decisions. Then we will assist Parents in applying for guardianship of their children to maintain legal control over decision-making. If granted, policies that apply to Students under 18 continues to apply thereafter.

CurbeloLaw also helps creating legal trusts for the extended future of your disabled child.

This entry hasn’t considered the multitudes, or variations, of situations confronting Parents and their Students. This is just a tiny window into some of those “what ifs?” In cases of residency, domicile and special education needs, it is in your family’s best interest to seek legal advice. That’s where CurbeloLaw can be of service to you.

If you have any Educational Law Questions, please call us: