There are two types of custody in New Jersey: physical custody and legal custody. Physical custody refers to the physical possession of the child - who the child lives with. Legal custody refers to the right and responsibility to make major decisions about a child's health, safety, welfare, and education - including where that child will go to school.
For an explanation of how courts determine custody in New Jersey, see Child Custody in New Jersey: The Best Interests of the Child, by Susan Bishop.
Divorcing parents may agree to share legal custody equally – such that both parents’ input and consent will be required for all major decisions. Parents may also divide decision-making responsibilities (eg., only one parent has the right to make all health-related decisions, while the other parent makes decisions about the child’s education). If parents can’t agree how to divide legal custody, a court will order that it be shared jointly, or will specify what decision-making responsibilities (if any) each parent has.
If you want to have a say in your child’s education after divorce, you should ask for joint legal custody or, at a minimum, make sure you have decision-making authority over educational decisions. If your child’s other parent won’t agree to share legal custody, you should contact a family law attorney that can help you determine your next steps and make sure your rights are protected.
A child may be perfectly fine attending class in Parent A’s school district just after a divorce. But, as time goes on, Parent A’s district may not be the best educational choice for middle school or high school, and the family may decide that a transfer to Parent B’s school district is in the child’s best interests. May a child transfer to the other parent’s school district? The short answer is yes, but only if the child is “domiciled” in both locations.
In New Jersey, if children truly have two “domiciles” (locations where they reside with their parent(s)), as the result of a divorce, they may be able to attend school in either location. However, schools typically want proof of the two domiciles.
Your judgment of divorce may provide some evidence that your child lives in both households. It should state that you and your child’s other parent have shared or joint physical custody of your child, and that your child has two domiciles. You should provide a copy of this to the new school so it can verify the shared parenting agreement.
It goes without saying that the parenting plan and divorce judgment should reflect reality. If Parent B actually has very little or no parenting time with the child, it’s unlikely the child will be eligible to attend school in Parent B’s district. Plus, there are some pretty severe penalties for parents that enroll their children in the wrong school district (see below).
You and your child’s other parent should also execute a “consent order” (legal paperwork that states the child is attending a different school district). If you submit this, along with a valid divorce judgment showing shared physical custody, then the school won’t have much basis to harass your family about residency issues. Sometimes, however, these legal documents aren’t enough, and the school may search for additional proof of living arrangements.
Even if your divorce judgment says that there’s shared custody and two domiciles, it doesn’t necessarily mean a school will consider that to be the case.
Sometimes, parents try to enroll their children in the wrong school district for a variety of reasons: they may be dissatisfied with their own school district and want a better education for their children. Whatever the reason, parents who enroll their children in the wrong school district, even with a good faith intent, can suffer severe consequences.
Because of growing demands and the simultaneous decrease in resources, New Jersey schools are cracking down on out-of-district students. Many school districts now perform “door checks” and “park-and-wait” surveillance of homes to determine whether children actually reside at their stated home address.
If a school official suspects that a student is not properly enrolled, the student may be removed following a hearing (with notice to the family) before the Board of Education. See N.J.A.C. 6A:22-4.3. The family may appeal the Board’s decision to the Commissioner of Education, but if they lose the appeal, tuition may be assessed against the family for the period of the improper attendance. See N.J.A.C. 6A:22-4.2(b)(6).
If you’re going through a divorce, and there’s a possibility your child may switch school districts in the future, you may want to obtain a copy of the alternative school district’s residency policy before you finalize your parenting plan and divorce agreement. These policies may guide some of your custody decisions.
Many times, after a divorce, custodial parents (parents with more parenting time) refuse to share school records with noncustodial parents (the parent with less parenting time).
Under both state and federal laws, noncustodial parents should have a meaningful opportunity to obtain vital information about the education of their children, including school records (eg., grades, disciplinary histories, and health records).
For more information on these laws, see N.J.S.A. 9:2-4.2, and the Family Education Rights and Privacy Act at 34 C.F.R. Part 99 et seq., 99.4, and 99.10.
Although noncustodial parents should have access to their children’s school records, sometimes, schools are concerned about taking sides between parents, and may not comply with noncustodial parents’ requests.
One way to avoid this situation is to make sure you and your child’s other parent share legal custody so you both have the right to make decisions about your child’s education. Also, make sure your custody agreement, parenting plan, and/or divorce judgment contain specific language that allows you access to your child’s school records. You can show these documents to the school, which should be enough to get copies of your child’s records.
If your custody agreement or order doesn’t contain this kind
of language, and your child’s other parent and/or school administrators refuse to
give you records, you’ll have to head back to court. You can ask the judge for
an order expanding your role regarding the educational decisions for your child,
and for an order that the school produce student records. If the judge grants
your request, you should be in good shape: schools can’t just ignore court
The New Jersey Supreme Court has held that where a child split time between both parents equally, the child had two domiciles and could attend school in either district. See 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.