The beginning of a new school year brings many challenges for school administrators. A new school year also results in a flurry of motions and requests from Family Division and Juvenile Court attorneys who advocate on behalf of their clients for enrollment in a specific school district. These Motions are presented without any notice to the school district, and usually the first knowledge the district receives is a copy of the Order requiring enrollment or attendance in the district. Many times, the Family Division and Juvenile Court Judges are not guided by the provisions dealing with residency and enrollment in the School Code, but are presumably guided by the custody standard of “the best interests of the child.” These Court Orders and the underlying circumstances for each take on many varying forms. Due to developments in the law, a district confronted with such an Order may be more limited in its ability to receive tuition.
The two provisions of the School Code which address these residency issues are Section 13-1302 and 13-1305. Section 13-1302 provides that “a child shall be considered a resident of the school district in which his parents or the guardian of his person resides.” Therefore, upon receipt of a Family Division or Juvenile Court Order requiring enrollment, the first level of inquiry should be to determine whether either parent is a resident of the school district. In all likelihood, the parents are maintaining separate residences. There is always the possibility that one of the parents has relocated outside the school district; in some cases, both parents may have relocated outside of the district. Therefore, the first level of inquiry should always be to obtain proof and documentation of the current residency of both parents. If it is determined that both parents have relocated outside the district, and the child is subject to a Custody Order wherein both parents continue to share custody, the district has several options. If the district decides to abide by the Court Order and permit the enrollment of the child in the district, it would be well within its rights to demand payment of tuition since both parents of the child are nonresidents. Alternatively, if the district has adopted a policy of not accepting nonresident children on a tuition basis, the district may opt to decline to accept enrollment of the child, regardless of the Court Order. Since the district was not a party to the custody proceedings which resulted in the Family Division Custody Order, the Court would have no jurisdiction over the district to enforce the Order.
If one of the parents continues to reside in the district and the other has established a separate residence outside the district, the next level of inquiry is to require that the parents provide a copy of the underlying custody order to determine whether the parents have shared legal and/or physical custody, or whether either of the parents has been designated as the primary legal and physical custodian of the child. The law in this area has been evolving. For many years, the Commonwealth Court decision in Mathias v. Richland School District, 140 Pa. Commw. 298, 592 A.2d 811 (1991) provided guidance in this area. In the Mathias case, the mother and father maintained separate residences, with the father continuing to reside in the Richland School District and the mother outside the district. Initially, the child in the case lived with her father and attended Richland School District. She then moved to her mother’s residence, which is not located in Richland School District. When the school district discovered this, they notified the mother that she would be required to pay tuition in order for the child to attend school in the Richland School District. The mother filed a complaint seeking an Order requiring Richland to enroll the child as a student without payment of tuition, as long as her father resided in the school district. This request was denied by the Court, and the mother appealed, arguing from the language of Section 13-1302 of the School Code, that a child is not limited to being a resident of one school district, but could be considered a resident of either school district where either parent resided. The Commonwealth Court disagreed with this argument and held quite clearly that “an interpretation of Section 1302 of the Code which would permit a child to be a resident of two school districts is absurd and unreasonable.” Citing to the Pennsylvania Supreme Court case of Fossleitner Appeal, 435 Pa. 325, 257 A.2d 522 (1969), the Mathias court confirmed that, “upon separation or divorce of the parents, a child acquires the domicile of the parent with whom he resides or to whom custody of the child has been given.” In the Mathias case, since there was no dispute that the child resided with her mother in the Forest Hills School District, the Court concluded that she was a resident of the Forest Hills School District and was not entitled to attend Richland without paying tuition.
This bright-line standard has been blurred to some extent by the 2000 Pennsylvania Supreme Court decision in Residence Hearing Before the Board of School Directors, Cumberland Valley School District, 560 Pa. 366, 744 A.2d 1272 (2000). In the Cumberland Valley case, Dr. and Mrs. Thane decided that Mrs. Thane, along with both of their children, would move from the family home in Chambersburg, Franklin County, to a townhouse in Hampden Township, Cumberland County. The Cumberland School District notified the Thanes that they did not consider the child a resident of that district and therefore was not entitled to any educational benefits. The basis for this decision was that the Cumberland County townhouse was only a temporary residence for Mrs. Thane and her two sons; that it existed only for their temporary convenience; and that the Thanes had no intention of making it their primary residence. The record reflected that Mrs. Thane and the two children had moved to the leased townhouse in Cumberland County. They did not merely visit the townhouse, but rather lived there. They stayed there during the days and slept there at night; mail and telephone calls were received there; and clothing, books and supplies were kept there. The Pennsylvania Supreme Court determined that these facts revealed Mrs. Thane and her two sons lived at the townhouse and were therefore residents of the Cumberland School District. The Supreme Court held that the proper definition of the term “resides,” as it is used in Section 13-1302 of the School Code, is “the place where the custodial parent maintains a residence, and . . . it need not be a primary residence or domicile.” On its face, this definition does not appear to conflict with the Mathias court precedent where “upon separation or divorce of the parents, a child acquires the domicile of the parent with whom he resides or to whom custody of the child has been given.” The analysis still rests upon the underlying Custody Order and which parent has been granted primary legal and/or physical custody of the child. However, of concern in the Cumberland Valley case is a statement by the Supreme Court that “the legislature did not require that parents do anything more than reside in a school district in order to enroll their children in the local public schools.” Viewed in isolation, this statement appears to lend validity to the argument that, regardless of the amount of custody time spent with a resident parent, as long as the parent remains a resident of the district, the child can attend the school district of the parent’s residence. Taken to the extreme, if the resident parent exercises no physical custody of the child, the child does not reside with that parent or spend any overnight time with the parent, merely because of the parent’s residence in the district, the district would still be required to accept the child as a student.
Although this is a potential interpretation of the Cumberland Valley decision, districts could still safely rely on the language in the Cumberland Valley case that the term “resides” refers to “a place where the custodial parent maintains a residence.” Therefore, if the underlying custody order does not identify the resident parent as the primary legal physical custodian of the child and/or that the resident parent has a shared legal and physical custody, the district could still challenge the enrollment of the child in the district without paying tuition. However, if the district takes this position, it should be aware of the potential challenge which could be raised based on the Cumberland Valley case.
Revisiting the different scenarios which may arise in the Juvenile Court setting, some of the same analysis from the Cumberland Valley case may apply to Juvenile Court decisions, especially if one or both of the parents continue to reside in the district. However, due to the special circumstances which could surround a Juvenile Court Order, a situation may arise where neither parent continues to reside in the district, yet the Juvenile Court Judge or Hearing Officer enters an Order, presumably in the best interests of the child, to still require the child’s enrollment in the former district of residence. Before complying with the Order, the district should take steps to determine the residency of both parents, and whether either of them reside in the district. If one or both parents reside in the district but the student is actually placed in foster care or some other placement outside of the district, the Cumberland Valley analysis would apply. In some situations, the Juvenile Court may designate a relative or other individual who resides in the district to be the location from which the child would attend school in the district. In this scenario, the child may not actually be placed with that relative or other individual. Absent actual placement with that relative or other individual in foster care placement under Section 13-1305, the district could deny enrollment unless the district was willing to accept the child upon payment of tuition. Under Section 13-1305, if the nonresident child is placed in the home of a resident of the district by order of court or by arrangement through an agency such as Children Youth & Families (CYF), and the resident is compensated for keeping the child, any child of school age shall be entitled to all free school privileges accorded to resident school children. However, before accepting the child, the district should require documentation, either through written confirmation from CYF or a Court Order which reflects the placement in the home of the resident. If a placement is by family agreement only, the district can require affidavits and other appropriate documentation under Section 13‑1302(2).
From the above brief examples, it is clear that districts are faced with many variations which have chipped away at the traditional concepts of residency and the bright line standards to determine whether tuition should be demanded. Therefore, as always, if there is any question, the district administrator should consult with their solicitor before making any final determinations.