School Law and Divorce

   
1. Why is school law such an important part of the divorce process?

In many divorces the children’s education is a major issue. Unfortunately, many lawyers overlook school law issues in the separation agreement or in the judgment of divorce. A judgment of divorce should be carefully prepared to address the potential pitfalls that can arise in the future. In many cases, a child may want to attend school in the district where the noncustodial parent lives. To avoid any potential legal problems with the school district, the judgment of divorce should specify that the child has two different domiciles. One domicile for the child is with the mother, and the other one is with the father.

The judgment of divorce also should provide that both parties have equal access to the children’s school records. Although this issue appears to be straightforward, it is amazing how many divorced couples can make a Herculean task of copying school records for the noncustodial parent.

A divorcing family should also consider bussing issues if the child attends school out of the district where he or she lives. A school district has no legal obligation to provide bussing for a student who lives out of the district.

The education of a child with learning disabilities also creates issues. A noncustodial parent should have language inserted into the judgment of divorce that grants him equal rights and responsibilities in making decisions regarding the Individual Education Plan (IEP) for the child. Moreover, the noncustodial parent should have language in the judgment of divorce that provides that he has equal access to all teachers, psychologists, and other school personnel to formulate an IEP plan for the child.

2. If the parents have joint custody and live in different townships, can the child attend school in either school district?

The key issue involved here is the domicile of the parents. A domicile is where the parent lives. A child’s domicile is normally that of the parent. After a divorce or legal separation, the domicile of the child is that of the parent with whom the child lives. When life was simpler, it was much easier to determine the school district of enrollment for the child, and a divorce did not complicate this issue. Historically, the mother was the primary custodial parent in most instances. Moreover, the time spent with the other parent was clearly labeled as visitation time. In the new millennium, there has been an explosion of joint custody and customized living arrangements. Nothing is as “black and white” as it once was. In today’s world every legal issue is a blur.

To complicate matters even further, the cost of educating a child in a local township is approximately $10,000 per year. Local school boards are under tremendous pressure to save money. If a school system has too many “illegal” students a budget crunch may result. We all know that principals and teachers don’t get raises if there are budget problems. Therefore, local school boards really scrutinize whether a child is truly a resident of the township. As a result of the increase in customized living arrangements, local school boards and the courts often have to wrestle with the domicile issue for a child who comes from a divorced family.

A very important case is Somerville Board of Education v. Manville Board of Education, 332 N.J. Super. 6 (App. Div. 2000), aff’d 167 N.J. 55 (2001). Here, the concept of domicile was re-examined in the context of a joint custody arrangement that involved a special education student whose residence was split equally between her parents’ homes in both Manville and nearby Somerville. The child alternated weeks back and forth with each parent. The issue before the court was which school district would pay for the out-of-district placement of the child at a special needs school. Before the child was placed, the child attended school in Somerville where the father lived. The school officials in Somerville and Manville had an oral agreement to share the cost for the special needs school on an alternating year basis. Thereafter, a new special education director in Manville refused to continue the arrangement on the grounds that the child was not domiciled in Manville.

After years of litigation, the case ultimately went to the New Jersey Supreme Court, which held that both Somerville and Manville were the domiciles of the child. The court held that the oral agreement to share the costs for the special needs school was enforceable, and should be continued. The court further noted that the divorced parents shared equal parenting time under a joint custody arrangement. The child had an “alternating domicile.” Therefore, the court reinstated the cost-sharing agreement, and both districts had to pay for the cost of the special needs school.

In summary, it is common for divorcing parents to change residence during a school year. Most school boards are reasonable with the families and have adopted policies that permit certain students whose families have moved out of the school district to remain enrolled through the end of the academic year. For example, some policies permit students in their senior year of high school to finish out the year if their families move out after a certain date. If a divorce case should happen to have this type of issue, the parties should obtain a copy of the school district’s residency policy before any settlement is reached as to custody and parenting plans.

3. What are the consequences if a child is improperly enrolled in a school district?

For various reasons, many parents frequently attempt to enroll their child into the wrong school district. Most often, the parents are dissatisfied with their own school district and want a better education for their child. In some cases, a child is enrolled in a district where a grandparent or other relative lives. In other instances, a child may be enrolled in a district’s high profile athletic program. Whatever the reason, parents who enroll their children in the wrong school district, even with a good faith intent, can suffer severe financial consequences.

If a school official suspects that a student is not properly enrolled, the student may be removed following a hearing before the Board of Education with notice to the family. See N.J.A.C. 6A:22-4.3. The family has the right to appeal the Board’s decision to the Commissioner of Education. If the appeal is not successful, tuition may be assessed against the family for the period of the ineligible attempt. See N.J.A.C. 6A:22-4.2(b)(6).

The bottom line is that educating a child has become tremendously expensive in New Jersey. Many school districts perform “door checks” and “park-and-wait” surveillance of homes to determine whether children actually reside at their stated home address. If your child(ren) switches school districts, then you must have your legal paperwork in line. The divorced couple should execute a consent order that specifies that the child is attending a different school district. Consent orders are really simple to prepare, and they are very cost-effective. No motions need to be filed as long as both parties sign the consent order. Filing motions can be very expensive, and they should be avoided if possible. As long as a person has a valid court order that specifies that the divorced couple has joint legal custody, then the school boards really can’t harass the family about residency issues.

In summary, some school districts strictly enforce the legal consequences if a child is improperly enrolled in a school district. The case of A.L. and J.A. v. Board of Education of the Township of Bloomfield, Essex County, OAL Dkt. No. EDU-01854-03, is illustrative. In this case a couple lived together in Newark with their three children. The husband moved out and relocated to the Township of Bloomfield in the year 2000. The parties were divorced in 2002. The wife remained in the marital home until it was eventually sold in 2003.

The husband then enrolled all three children in the Bloomfield school district for the 2002-2003 school year. The husband did not realize that the district performed “door checks” and “park-and-wait” surveillance. Based on substantial evidence that the children still resided in Newark, and the implausibility that they spent most of their time during the school year with their father and his live-in girlfriend in a two-bedroom condo, the Administrative Law Judge assessed $16,116.66 in back tuition against the father. The case was then appealed to the Commissioner of Education, and it was upheld.
  

4. What is the “hardship exception”?

Children are sometimes forced to live temporarily with adults other than their parents, due to a family emergency or hardship. When this occurs as a result of a separation or divorce, the State Board of Education regulation provides several alternatives for enrolling the child in the district where the student resides. The most commonly used method is the so-called “affidavit pupil” procedure and is described in N.J.A.C. 6A:22-3.2(a).

If a school district exerts pressure on a family to explain an enrollment, the family will have to go through the “affidavit pupil” procedure. If this process is not successful, the family should explore naming the relative or family friend where the child is residing as the formal legal guardian. The family has to see the local County Surrogate and fill out the necessary forms to appoint a guardian for the child. The procedure is not as complicated as it sounds.

5. I have been divorced for nearly five years. The school system where I live is terrible. Therefore, my son attends school where his father lives in a neighboring township. Does my child’s school district have to provide adequate bussing for him?

The general rule is that school districts must provide free transportation to and from school for elementary school pupils who reside more than two miles from their assigned school, and for secondary school pupils who reside more than two-and-a-half miles away. N.J.S.A. 18A:39-1. The schools may also provide transportation to a student who lives closer to the school; however, these services are discretionary.

In many divorced families, a key issue is providing transportation for a child who has to travel out of the district to attend school. A school district is not legally obligated to provide transportation to a child who does not personally live in the district. N.J.A.C. 6A:22-3.11(a)(1)(ii)(2) provides:

No school district shall be required to provide transportation for a student residing outside the school district for part of the school year, other than that based upon the home of the parent domiciled within the district to the extent required by law, as a result of being in the district of domicile for school attendance purpose pursuant to the provisions of this subsection.

6. My ex-wife won’t give me a copy of our child’s report cards. Can I obtain these school records myself directly from the school?

This issue occurs all too often in divorced families. Quite frequently an upset ex-wife will not give her husband copies of report cards or other school records. This intransigence occurs especially if the husband is a “deadbeat dad” or is a “slow pay” with child support. Access to school records and the decision-making process is difficult enough for intact families, but it is especially challenging for a noncustodial parent.

A review of the law indicates that a parent has no federal constitutional right of access to school officials or to participate in their children’s education decisions. While there may be no constitutional right of access to student records or school personnel, state and federal statutes and regulations do ensure that a noncustodial parent has a meaningful opportunity to secure vital information about the education of his or her children. Student records are governed generally by the federal Family Education Rights and Privacy Act, 20 U.S.C. § 1232, and 34 C.F.R. Part 99, and the corresponding regulations of the New Jersey Board of Education, N.J.A.C. 6A:32-7.5(e)(1). The term “student record” generally includes grades, disciplinary histories, and health records. N.J.S.A. 9:2-4.2 provides:

a. Every parent, except as prohibited by federal and state law, shall have access to records and information pertaining to his or her unemancipated child, including, but not limited to, medical, dental, insurance, child care and education records, whether or not the child resides with the parent, unless that access is found by the court to be not in the best interest of the child or the access is found by the court to be sought for the purpose of causing detriment to the other parent. 

b. The place of residence of either parent shall not appear on any records or information released pursuant to the provisions of this section.

c. A child’s parent, guardian or legal custodian may petition the court to have a parent’s access to the records limited. If the court, after a hearing, finds that the parent’s access to the record is not in the best interest of the child or that the access sought is for the purpose for causing detriment to the parent, the court may order that access to the records be limited.

In summary, all parents have federal and state rights to access relevant school records. However, access to records is one thing; a noncustodial parent’s access to teachers and participation in the decision-making process involving his or her child is quite another. The weight of the case law holds that a noncustodial parent’s involvement in educational decisions is a matter of family law and is governed by the parties’ divorce judgment or written agreement. In most cases, school districts rely on the authority of the primary custodial parent to make decisions concerning the child, notwithstanding the disagreement of the noncustodial parent.

If an ex-spouse is not providing copies of your child’s report cards and other school records, write a letter to the school principal. The letter should be sent certified, should be typed, and should request that all of the child’s school records, including grades, disciplinary histories, and health records, be forwarded. The school is required by New Jersey law to provide the noncustodial parent with the records. Unfortunately, a noncustodial parent’s attempts to have access to teachers might pose a problem. Most teachers don’t want to get in the middle of two warring ex-spouses.

If a teacher rebuffs a noncustodial parent, then it might be necessary to go back to court. The noncustodial parent might try to obtain a court order expanding the noncustodial parent’s role regarding the educational decisions for the child. A teacher can’t ignore a court order, and will have to cooperate if it is obtained.
 

7. I believe that my ex-wife is abusing our son, and he often goes to school with marks on his arms and face. What are the child abuse reporting requirements imposed on a school and its teachers?

In many nasty divorce cases it is quite common for a noncustodial parent to file a child abuse complaint against the former spouse. The majority of DYFS complaints filed by former spouses have no merit, and are made with the sole purpose of harassing and annoying the former partner. Unfortunately, the filing of a DYFS complaint often starts a “perfect storm” towards a severely dysfunctional family. DYFS has to open up a file for every referral that it receives. Moreover, once a DYFS referral is made, the accused parent must be interviewed. This can be a very stressful and embarrassing experience. Even baseless DYFS complaints have to be addressed, and they can create tremendous stress and aggravation.

If a child has marks from being abused by a custodial parent, the school system has an obligation to report the situation to DYFS. Moreover, a child may possibly discuss abuse with a teacher. If a teacher or any other school personnel is informed of any type of abuse, it must be reported to DYFS.

There are some stringent requirements imposed on school personnel under N.J.S.A. 9:6-10. The law is entitled “Reports of Child Abuse” and provides:

Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately to the Division of Youth and Family Services by telephone or otherwise. Such reports, where possible, shall contain the names and addresses of the child and his parent, guardian, or other person having custody and control of the child and, if known, the child’s age, the nature and possible extent of the child’s injuries, abuse or maltreatment, including any evidence of previous injuries, abuse or maltreatment, and any other information that the person believes may be helpful with respect to the child abuse and the identity of the perpetrator.

This is a personal duty imposed on each school employee. The failure to comply with this duty may expose the teacher or school employee to prosecution as a disorderly person. N.J.S.A. 9:6-814.
  

8. What does the law provide concerning the education of a learning-disabled child of divorced parents?

Children who have learning disabilities enjoy a wide range of benefits under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 to 1487. The key to the implementation of the IDEA is an individualized educational plan (IEP). This is a document that is developed collaboratively each year by school officials and parents. This report describes the child’s problem, placement, goals, and objectives. If there is disagreement over the terms of the IEP, the IDEA and the New Jersey State Board of Education regulations provide a speedy hearing process before an Administrative Law Judge.

In many divorced families there is a great deal of disagreement over educating a child who may have learning disabilities. One parent may totally disagree with a classification of a child as having a learning disability; meanwhile, the other parent may completely agree with the classification. A leading case on this issue is Navin v. Park Ridge School District, 270 F. 3d 1147 (7th Cir. 2001). Here, a noncustodial father sought to invalidate a school district’s education program for his disabled child. The Seventh Circuit dismissed the father’s case. The court held that even though the divorce judgment preserved some important rights for the father, including the right to be informed about and remain involved in his son’s education, the mother’s view would prevail if the parents disagreed about education decisions. The court further held that the father could not use the IDEA to upset the choice committed to the mother’s discretion by the state court.

The New Jersey courts also take a similar approach. In the case of L.T. and C.T. v. Denville Township Board of Education, the parties divorce judgment provided:

Both parties shall have complete access to the.... school records of their child. Both parties shall have the right to communicate with the child’s teachers.... school official and other individuals so as to give full force and effect to each parent’s right to have complete access to the information set forth about. [The father] has the right to counsel with [the mother] with respect to major decisions regarding the children, such as...major schooling decisions, by telephone or mail. However, after considering [the father’s] input with respect to these major decisions, the right to make these decisions regarding the children is left to [the mother].

The father filed a petition to the Office of Administrative Law for a due process hearing. The father claimed that his son’s special education program was inappropriate. The father relied on the terms of the divorce judgment and cited the Navin case. The ALJ held that the father had no legal authority to change the school district’s actions without the mother’s consent.

In summary, in a divorce involving the parenting of special needs children, careful attention to parenting details must be placed into the judgment of divorce. The judgment of divorce should provide that the noncustodial parent has equal rights to collaborate in creating an IEP for the child. Moreover, it should provide that the noncustodial parent has equal access to all teachers, therapists, and guidance counselors. Finally, the judgment of divorce should also provide that the noncustodial parent has equal rights to make any educational decisions for the special needs child.