Memo 14

Where Pupils Are Entitled to Attend School; Residence and Custody Issues

We note that special rules apply to group homes, particularly when special education services are required. This memorandum does not address those issues, but the issues are always present at the IEP meeting for group home residents.

Pupils in public schools attend school in the district where the parent or guardian resides. (Education Code section 48200.) Problems arise when the parents present school site staff with "custody" papers which look like court documents reflecting a divorce, separation or guardianship. The following are reasons for which a pupil’s residence may end up different from that of the parent, starting with divorce or separation.

1. Dealing with Divorce (Dissolution of Marriage or Separation) Forms

The trend in the courts favors giving separated or divorced parents joint legal and physical custody (Civil Code §4600.5). The initial custody request in the Petition is for joint custody. If the child is truly in the "joint" custody of the parents, you may assume that the child may legally attend school in the district of either parent’s residence. But before reaching that conclusion, you must read the actual court order to verify the child’s proper residence.

b. Read the Court Papers for Special Provisions on School Attendance –

Absent a special set of "joinder" papers, school districts are not parties to divorce cases.

Many court orders are fashioned to switch housing or residence arrangements over extended periods of time. In some cases, children may live with a parent in alternate months or years, thus requiring the children to periodically change schools.

c. Stay-Away Orders vs. Limited Visitation –

Occasionally, a parent may attempt to present a school with papers which say that a parent has limited visitation rights. These papers are often confused with (or misrepresented as) "stay-away" orders.

d. Always Try to Get a Copy of the Final Judgment –

The Judgment, if one has been issued, always takes precedence over prior orders.

2. Foster Home Placements

The term "foster home" is somewhat ambiguous. There are three types of foster children- two groups are "placed" by the courts and a third group is "placed" by private agencies.

a. Juvenile Court Dependents –

These children are subject to Welfare and Institutions Code sections 300, et seq. Foster care placement workers supervise placement in designated group homes or individual homes. Parents lose their custody status, and the children essentially "reside" in the school district where the foster home is located.

b. Wards of the Juvenile Court –

Wards of the juvenile court are minors whose behavior (criminal or out-of-control) has resulted in probation officer supervision. Again, parents lose their custody status. The wards reside in the school district where the foster home is located.

c. Private Agency Placements –

Many private agencies (LDS Social Services, Adoption Services International, Holt Services, etc.) have licenses to care for children and place them in private homes. Typically, the children are from out-of-state or overseas. The placements with families, or group homes, are labeled "pre-adoptive," and the agencies themselves are licensed adoption agencies. The parents may be unknown, or they may have signed an agency relinquishment or a consent to adoption form in blank. The "placement" papers issued by these private agencies are not automatically binding on school districts. This means that determination of residence does not automatically depend on the location of the home where the child is staying. Guardianship (see below) should be encouraged where custody is in doubt.

3. Emancipated Minors

Under California law, a person under age 18 automatically becomes "emancipated," or treated as an adult, when a court so approves. (Civil Code section 64.) Marriage, even if later annulled, automatically emancipates a minor, as does entry into active military status. (Civil Code section 62.)

4. Placement With a Relative

Section 87001 of Title 22 of the California Code of Regulations recognizes limited situations where a pupil is considered to "reside" with certain relatives. "Relative" means spouse, parent, stepparent, son, daughter, brother, sister, stepbrother, stepsister, half brother, half-sister, uncle, aunt, niece, nephew, first cousin or any such person denoted by the prefix "grand" or "great," or the spouse of any of the persons specified in this definition, even after the marriage has been terminated by death or dissolution.

Prior to enrollment of a pupil on this basis, both the parent and the relative should sign a declaration about the change in residence. The parent should separately give you a special power of attorney form authorizing the relative to handle consents for discipline, trips, records release and other matters.

5. Guardianship

In some areas, our clients have seen an increasing number of probate court guardianships. When the court issues guardianship papers, the parent loses custody. Residence is then determined by where the appointed guardian lives.

6. Where Parents Are Employed

Under California Education Code section 48204, subdivision (f), residence for an elementary pupil may be established for attendance purposes if a parent or guardian is employed within the school district boundaries. "Elementary pupil" is not precisely defined in the statute. We have concluded that the term refers to K-6 pupils and does not include grades 7-8.

The law does not require the school district to admit pupils to its schools under this provision but sets forth specific criteria which may not be the basis of denial. The receiving district may not refuse to admit pupils on the basis of:

a. Race;
b. Ethnicity;
c. Sex;
d. Parental income;
e. Scholastic achievement; or
f. Other arbitrary consideration.

The receiving district and the transferring district may each prohibit the transfer if either governing board determines that the transfer would negatively impact the district’s court ordered or voluntary desegregation plan.

The receiving district may prohibit the transfer if it determines that the additional cost of educating the pupil would exceed the amount of additional state aid received as a result of the transfer.

Any district governing board prohibiting the transfer for any of the reasons discussed above must identify and communicate in writing to the pupil’s parent or guardian the specific reasons for the denial. In addition, the specific reasons must be recorded in the minutes of the board meeting in which the determination was made.

Unless approved by the transferring district, the law does not authorize the transfer of pupils out of any given district in any fiscal year in excess of the following amounts:

a. ADA – less than 501 – five percent of ADA. (Maximum of 25)

b. ADA – 501 to 2,500 – three percent of ADA or 25, whichever is greater. (Maximum of 75)

c. ADA – 2,501 or more – one percent of ADA or 75 pupils, whichever is greater. (Maximum is one percent of ADA if over 7,500 students.)

If the receiving district wants to enroll a pupil on the basis of residency established by parent or guardian employment within the district, the transferring district can object to, but cannot prohibit, the transfer unless the transfer would negatively impact a desegregation plan or exceed the ADA amounts discussed above.

In our opinion, a receiving district can establish behavior criteria for enrollment under this provision. For example, a district can refuse to admit any student who has been expelled from another district or who has been suspended a certain number of times during a certain period of time. If applied consistently, this would not be an arbitrary consideration. We must emphasize, however, that any refusal to accept a student under this law, for reasons other than those specified in the statute, is subject to challenge for arbitrariness. Denial of a request by the parent is not subject to review by the County Board of Education.

The governing board should adopt a policy which sets forth the procedure which will be followed in order to implement residency established due to parental employment.

7. Interdistrict Transfer

A child may attend school in another school district if the two school districts enter into an agreement for interdistrict attendance pursuant to Section 46600. The child care needs of the pupil must be given consideration when considering the request of the parents or guardian for an interdistrict agreement. Denial of a request by the parent or guardian is subject to review by the County Board of Education.

A student who has been expelled, or is facing expulsion, may apply for an interdistrict transfer to another district. However, the student may not appeal to the County Board of Education if the transfer is denied.