New Jersey guarantees a free public education to children who live in the state. This free public education is only offered by the district in which the children live a majority of the year or the districts where the children split their time equally.

Often times parents who are separating or divorcing attempt to negotiate where their children will attend school when they are negotiating custody and parenting time. Parents (and lawyers) often think that as long as the parents agree on where their children will attend school that this decision is controlling; however, this is not always true when the children attend public school.

Regardless of what an agreement between the parents state, children who attend public school are required to be domiciled in the school district where they are attending school. (For our purposes domiciled means where you live the majority of the time or 50% of the time, under the actual law it is a little more complicated, but this is because of school funding regulations.)

The parents’ agreement, and family law generally, do not control where children are permitted to attend public school. Instead, New Jersey school law controls. Some New Jersey parents have learned this the hard way and they have been sued by a Board of Education and required to reimburse the school district the cost of their children’s tuition for the period of time when the children attended school in this district, but were not living a majority of the year in the district. Even if there is a custody order by a court or agreement between the parents, the Commission of Education (who decides these cases) will determine where the children are residing 50% of more of the year. (See R.C.P., Jr. o/b/o minor children, J.P. and J.P. v. BOE of the Twp. of Hillside, Union County http://www.nj.gov/education/legal/commissioner/2014/dec/494-14.pdf) Children are only permitted to attend a district where the children are residing 50% or more of the time or the parents may have to reimburse the district of the cost of tuition, which is what occurred in the R.C.P. Jr. case referred to above. In that case, the parents were obligated to pay the Board of Education tuition costs of $25,524 for the 2013-2014 school year.

As the cost of public education continues to increase in our state, it is more common for a school district to sue parents or another school district for the cost of children attending the district’s schools. In the case of a special needs child, whether that child is in-district placement or placed in an out-of-district placement, the costs for the child’s education may be very costly to the district, who may seek contribution for these costs from the parents or another district. It is particularly important in these cases that parents enroll their children in the correct district because instead of having to repay the district $10,000 – $15,000 per student, parents could have to repay much more.

In family law, the trend of equal or joint custody continues. There are more and more families where the parents have a true shared parenting time arrangement (50/50) whether it is by agreement or a court order. This creates confusion concerning where children are permitted to attend school without their parents having to pay as the parents in the example above. If parents share joint custody and a 50/50 parenting time schedule for their children, the children may attend either school district that the parents reside in. This is beneficial in cases where one parent remains in the school district (possibly in the family home), but the other parent moves out of district, whether it is because it is more cost effective to live in the next town or they could not find a home with the specifications they wanted in same town. In this scenario, it does not matter which town the parent lives in, neither parent has any more rights over their children or to communicate with the school than the other parent. This is an important when parents have agreed to joint legal custody and a 50/50 parenting time schedule. These parents have chosen to be equal parents to their children and the schools are required to recognize them as equal.

Parents who have a 50/50 parenting time arrangement can decide to designate one parent as the “parent of primary residence” for school purposes, (see N.J.A.C. 6A:22-3.1), but often times this designation serves no practical purpose other than to create a situation where one parent attempts to use this designation to claim more power or control over their children as compared to the other parent. In fact, if children are already enrolled in school and are not changing schools I often encourage clients not to designate a parent of primary residence for school purposes where they have a 50/50 parenting time arrangement because there is no effect other than providing one parent with the power to later claim that if they move that their children should change schools. Often times a change to another school is not in the children’s best interest and a provision in a contract should not control where children attend school, their best interest should control. Of course, there are other items where a designation may be appropriate, i.e. if both parents anticipate a move in the near future.