Attendance, Tuition, and Custody Law
Ohio Association of EMIS Professionals Annual Conference
May 8, 2017
Hollie F. Reedy, Esq.
Hannah Reichle
Compulsory Education
Ohio law requires that all children of “school age” shall be entitled to attend public schools in the district of residence free of charge. R.C. 3313.64.
“School age” is defined as: R.C. 3313.64(B).
Non-handicapped: between 5 and 22 years of age;
Handicapped: beginning at age 3.
GED does not terminate responsibilities.
Residency
Residence of child is usually where the parent lives.
“Parent” generally means either natural or adoptive parent.
However, if parents are separated or divorced, or their marriage has been dissolved or annulled, then “parent” means the parent who is designated in the court order or decree as the residential parent and legal custodian of the child.
Parent awarded custody in an action for divorce, annulment or dissolution is responsible for notifying the School District of any custody arrangements by providing the school with a copy of the court order or decree awarding custody for child at time of enrollment. R.C. 3313.672(B).
The custodial parent is responsible for updating the school on any subsequent changes made to the court order or decree.
Guardianship does not necessarily affect obligation to pay tuition. Guardian must have legal custody of the child for the child to attend school in the district.
Determining District Attendance
Residence of child’s parent is generally where the child is entitled to attend school.
Shared Parenting Plan:
Unless a court specifically orders otherwise, both parents are considered child’s residential parent and legal custodian regardless of where child resides at a particular point in time. (SeeR.C. 3111.01.)
This means child may attend school tuition-free in the district where either parent resides, even if child is actually residing outside the district of enrollment.
Court designation of parent for school purposes may affect ability to attend.
Unmarried parents:
Unless a court order says otherwise, an unmarried female who gives birth to a child is the sole residential parent and legal custodian. Thus, the district of free attendance is determined by her residence alone. R.C. 3109.042.
When a child is in the legal custody of a governmental agency, “parent” means the parent who has residual parental rights or who has been divested of residual parental rights. R.C. 3313.64(A)(1).
Boards of education must admit certain students who parents do not live in the district:
Child is in legal or permanent custody of a “home” – i.e., any institution, foster home, group home, or other residential facility which is licensed or certified by the State or operated by a licensed or certified individual other than child’s natural or adoptive parent. [R.C. 3313.64(B)(2)]
Tuition generally is charged back to district where child’s parent(s) resides. [R.C. 3313.64(A), (C), (J)]
This may be true even if the child was not assigned to the home, but rather was voluntarily placed by the child’s parent. R.C. 3313.64(C)(4).
If parent(s) reside outside Ohio, the “home” itself is liable for tuition.
Self-Supporting/Emancipated Students
Student is between 18 and 22, lives in the district apart from his parents, supports self by own labor, and has not completed high school curriculum or individualized education program. [R.C. 3313.64(F)(1)]
Married student: Student is under 18, married and resides in the district. [R.C. 3313.64(F)(2)]
Adoption: Child has been placed for adoption with person(s) who reside within the School District and his parents live outside Ohio. [R.C. 3313.64(B)(3)]
Exception - placement for adoption has been terminated or another school has been required to admit child where parent resides.
Medical needs: Child requires emergency medical attention he may attend in a district in which either parent is employed. [R.C. 3313.64(F)(3)]
Parent must produce a sworn statement from doctor certifying that child’s condition may require emergency medical attention.
Military service: Student resides in the district with a person other than parent while parent serves in the armed forces outside of Ohio: [R.C. 3313.64(F)(4)]
12 month time limit;
Affidavit from parent confirming name and address of person housing child and stating parent’s intent to return to Ohio upon return from service.
Enrolling Students on a Temporary Basis
The student’s parent(s) are building a house in District: [R.C. 3313.64(F)(6)]
90 day time limitation;
Parents must provide sworn statement identifying location of house and intent to reside there;
Statement from builder confirming that new house being built at location for parent(s).
The student’s parent(s) are purchasing a house in District: [R.C. 3313.64(F)(7)]
90 day time limitation;
Parents must provide sworn statement identifying location of house and intent to reside there;
Statement from real estate broker or bank confirming creation of purchase contract and that parent(s) awaiting closing.
A child attending school under these circumstances may participate in interscholastic athletics if he has been released by the board of the district where he resides and has obtained any authorization required by the athletic association or other agency. [R.C. 3313.64(F)(7)]
Domestic violence:Child resides in the district with parent under the care of a shelter for victims of domestic violence. [R.C. 3313.64(F)(9)]
Enrollment cannot be denied because of delay in records reaching the new school from the previous one and all days of attendance and credits earned must be recognized by any subsequent school. [R.C. 3313.64(F)(9)]
Open enrollment: School District has adopted an inter-district open enrollment policy. [R.C. 3313.98(B)]
POA’s: Power of attorney has been executed by a parent, guardian, or other legal custodian under the Grandparent Caretaker Law and the child resides in the District. [R.C. 3313.64(A)(1)(b)]
Requires hardship such as:
Incarceration
Residential substance abuse program
Parent is “seriously ill”
Parent is unable to provide adequate care/supervision due to physical or mental condition
Homelessness
Residence was destroyed/uninhabitable
Other parent is deceased
“Well founded belief that the power of attorney is in the child’s best interest” (can’t be for sports or academics)
Approval/Review by juvenile court (1st year approval, subsequent year review)
Military Service
The child’s parent is in the National Guard or a reserve unit of the US armed forces and has been called to active duty, or the child’s parent is in the armed forces and has been ordered to a temporary duty assignment outside of the district.
Tuition-free attendance continues as long as the parent is a permanent resident of the district, regardless of where the child actually lives during the period of the parent’s active or temporary duty.
If the child lives outside of the district, the district does not need to provide transportation. [R.C. 3313.64(M)]
Military Power of Attorney
The child lives with a person who is appointed to be the child’s caretaker under military power of attorney or other federal document while the parent is on duty out of the district.
Documents must include the authority to enroll the child in school.
A child in school under this exception may attend through the end of the school year in which the power of attorney or other document expires. R.C. 3313.64(F)(14).
Permissive Enrollment
Boards of education MAY admit students tuition-free in the following circumstances:
A resident of the district has submitted a sworn statement that he has initiated legal proceedings to obtain custody of the child. Limited to 60 days. [R.C. 3313.64(E)]
Foreign exchange student or non-Ohio U.S. resident admitted under exchanged program operated by a student exchange organization. [R.C. 3313.64(G)]
Student whose parent has died and student now resides in another district. With Board approval, student may continue to attend in district of deceased parent’s residence at time of death for remainder of school year. [R.C. 3313.64(F)(5)]
A resident of the district who has graduated from an approved special education program who wishes to now enroll in the district’s vocational program. (R.C. 3313.645)
A non-certificated employee of the district who wishes to enroll in vocational courses which, in the superintendent’s judgment, would assist the employee in his/her current position. (R.C. 3313.645)
Adult education programs. (R.C. 3313.645, R.C. 3301-42-01)
Student is child of a board employee.
- Tuition for children of employee may be waived through collective bargaining process or through Board policy. Any waiver by Board must be restricted to full-time employees and can only become effective or repealed on the first day of each school year.
- Once adopted, Board policy must allow admission of child upon employee’s request. No child may be admitted after the first day of classes for any school year. [R.C. 3313.64(F)(8), 4117.10(A)]
Parent moves out of district after start of classes in student’s senior year of high school. [R.C. 3313.64(F)(10).]
- Requires Board approval;
- Remainder of school year and one additional semester;
- May extend further for “extenuating circumstances”.
Grandparent Exception: Child in custody of parent, but who resides with grandparent and doesn’t require special education may attend tuition-free in district where grandparent resides. [R.C. 3313.64(F)(11)]
- Grandparent and school must execute written agreement that “good cause” exists for arrangement.
Agreements between superintendents of two districts that attendance is needed to protect student’s physical and/or mental well-being or to deal with other extenuating circumstances. [R.C. 3313.64(F)(12)]
- Agreement must be in writing.
- Student not entitled to transportation from either district, but must be allowed to participate in all student activities.
Student properly attending school in a district through the first full week of October may remain in that school for the rest of the school year in the event that the student or his/her parents relocate to a new address outside the school district but within the same county as the child’s or the parent’s address immediately prior to the relocation. [R.C. 3313.64(I)(1)]
- However, the original school district and the subsequent school district of attendance must each have a policy that permits such tuition-free attendance; and
- Parent must provide written notification of the relocation to the superintendents of both the original school district of attendance and the school district of relocation.
- If tuition was required through the first full week of October that obligation remains throughout the remainder of the school year.
- Transportation is provided under agreement by the two affected school districts if they have entered into such an agreement. If not, the student must be provided transportation from a regular bus stop designated by the district of attendance.
Case Law: Residency
Board of Education of City School District of Oakwood v. Dille, 109 Ohio App. 344 (Ohio App. 2nd 1959).
Facts:
Oakwood School District brought action to collect tuition for non-residence. Student attended to ailing grandmother at a residence within Oakwood School District. She spent approximately one-half of her time at her grandmother’s residence, and ate meals, cleaned and often spent the night. The rest of the time, student resided at an address outside school district with 6 other siblings.
Father of student was at grandmother’s Oakwood School District residence at least once a day; frequently ate meals and slept there, received mail there, and used this address as family’s voting address. All other times, father resided at home outside District with wife and other children.
Holding:
No tuition is owed – father is a resident
The parent of a child attending school in a local school district who is physically present and living in a residence located within such district for significant parts of each day and for important purposes consistent with residence, is an “actual resident” within the meaning of R.C. 3313.64 and is not liable for payment of tuition merely because he may have another residence outside the school district.
In re Laricchiuta, 243 N.E.2d 111 (Ohio App. 2nd Dist. 1968).
Facts:
In February of 1962, Butler County Juvenile Court found children to be “neglected” and transferred temporary custody of children to Department of Public Welfare. Children were then placed with maternal grandparents.
Shortly thereafter, custody of children was reinstated to mother, who then moved to Shawnee Local School District and enrolled children.
Mother resided in Shawnee Local School District for approximately 2 ½ months before children were again removed from home pursuant to agreement between mother and Preble County Child Welfare Board.
Children were entered in the Eaton City Schools, which served the Preble County Children's Home. Approximately two years later, the Child Welfare Board of Preble County filed a neglect complaint in the Preble County Juvenile Court. The court found the children “neglected” under applicable provisions of the Ohio Revised Code and granted temporary custody to the Preble County Child Welfare Board. No determination was made as to the cost of their education.
Shawnee School Board filed complaint challenging Juvenile Court’s Order requiring it to pay Eaton City Schools tuition for children, arguing that mother had not established residence in its school district at the time that the children were placed in Eaton Public Schools.
Holding:
'Placement' referred to in R.C. 3313.64 need not be by an order of court. The voluntary placement of the children under the agreement between the mother and Preble County Child Welfare Board on November 1, 1963, and their entry into the Eaton public schools, brings them within the placement requirement of the statute.
Despite short length of time in Shawnee School District, mother was nonetheless a “resident” for R.C. 3313.64. There is no minimum amount of time needed for parents to establish residence for the purpose of determining where a child is entitled to attend school.
Baucher v. Bd. of Edn. of Coldwater Exempted Village School District(1971), 31 Ohio Misc. 49.
Facts:
Baucher family owned and utilized houses on both sides of a road – each house lying in separate school districts. The North house served as the family’s sleeping quarters or dormitory. The South house served as the family’s dining and laundry areas. School district brought suit for collection of tuition.
Holding:
Court held it was impossible for family to live under their present conditions without using both houses. Together both houses constituted the “home” or dwelling place of the family, and children could attend schools of either school district free of tuition.
Board of Education, Kenton City Schools v. Day, 30 Ohio Misc.2d 25 (Hardin Co. C.P. 1986).
Facts:
At the suggestion of Kenton City School officials, non-resident parents who sent their children to Kenton as tuition-paying students, rented an apartment within the school district in an effort to obtain “residency” status.
Children went to apartment after school and frequently ate meals there, occasionally with their mother. Infrequently, a member of the family would spend the night.
At all other times, the parents of the children resided outside the School District. A new superintendent was subsequently hired by Kenton School District and sought to collect tuition for non-residency.
Holding:
Court found that family failed to establish residency within school district for purposes of R.C. 3313.64: “[O]ne cannot establish a residence merely by purchasing a house or apartment building or even by furnishing such a house or apartment so that it is suitable for the owner’s use.
‘Residence’ involves something more. It must be a place where important family activity takes place during significant parts of each day; a place where the family eats, sleeps, works, relaxes, plays. It must be a place, in short, which can be called “home.”
A person’s residence implicates “roots [that are] deep, permanent, present and substantial” and that there is “nothing temporary or accidental about such residence.”
Massie v. Lexington Local School District Board Of Education, 2001 WL 815532 (Ohio App. 5th Dist., July 3, 2001).
Facts:
Massie resided on property bisected by two townships – one corresponding to Mansfield City School District and the other corresponding to and Lexington Local School District. Massie’s house was located in Mansfield School District and part of his driveway and septic system were located in Lexington School District. Massie was registered to vote in the township corresponding to Mansfield School District. However, Massie sent his three children to Lexington School District. School District filed suit for collection of tuition.
Holding:
Court held that Massie “resides” in Mansfield School District, and interpreted “residency” to mean being present in household for significant periods and activities such as sleeping, eating, relaxing and receiving mail. Citing to the prior holding in Baucher, the court focused on the importance of the house and the corresponding activities that take place within the house in determining residency.
Forest Hills Local School District v. Huegel, 2003 WL 21496835 (Ohio App. 12th Dist., 2003).
Facts:
The Huegels owned property bisected by Hamilton County (Forest Hills School District) and Clermont County (West Clermont School District). The home sat squarely within Clermont County but portions of the driveway and landscape were within Hamilton County. The Huegels sent their children to Forest Hills.
Forest Hills filed a Complaint to collect past due tuition alleging that the Huegels fraudulently enrolled their children in the District without paying tuition despite being residents of West Clermont School District. The Huegels admitted that the home lied squarely within West Clermont School District but nonetheless argued that they could send their children to either school district, tuition-free.
Holding:
If the parents deny that they are non-residents, then the issue of residency must be decided by the Superintendent of Public Instruction. R.C. 3313.64(J), subsequently amended to R.C. 3313.64(K), requires the Superintendent of Public Instruction for the Ohio Department of Education to determine the school district in which the parent(s) reside. Until such a determination, the trial court lacked subject matter jurisdiction over the dispute.
Update:
In a June 20, 2005 decision, the Superintendent of Public Instruction for ODE held that the Huegels resided in the West Clermont School District and that their children were not allowed to attend Forest Hills School District on a tuition-free basis. Ohio’s Twelve District Court of Appeals affirmed the Superintendent’s decision on May 19, 2008 2008 WL 2102406.