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Bar News - November 18, 2015

Family Law: Understanding Divorce, School Choice and Child Protection


Divorce is the second-most stressful event a person can experience, second only to the death of a loved one, according to the Holmes and Rahe Stress Scale. The American Academy of Child & Adolescent Psychiatry has found that moving and changing schools is particularly stressful for children and adolescents, and “may be one of the most stress-producing experiences a family faces.”

For a child or adolescent struggling to process the changes and losses that so often accompany divorce, moving to a new school can cause emotional and educational harm. New Hampshire’s educational laws can help protect children from this intense stress.

School Choice and Divorce

RSA 193:12 provides divorcing parents with school choices. It states that, upon the parents’ divorce, a child can claim a legal residency with either parent. Divorced parents, who may now live in different school districts or in different neighborhoods in the same town or city, can choose which school district or which neighborhood school their child will attend. The statute provides that:

“In a divorce decree where parents are awarded joint decision-making responsibility or joint legal custody, the legal residence of a minor child is the residence of the parent with whom the child resides. In a divorce decree, or parenting plan developed pursuant to RSA 461-A, a child’s legal residence for school attendance purposes may be the school district in which either parent resides, provided the parents agree in writing to the district the child will attend and each parent furnishes a copy of the agreement to the school district in which the parent resides…” (Emphasis added)

Note that the child’s legal residency for “school attendance purposes” does not turn on how much time the child spends with the parent or whether the time spent with a parent is on school days or on weekends. If the parents’ parenting plan or decree allows for joint decision-making, then it appears the child can attend school in “the school district in which either parent resides.”

If the parents want their child to attend a charter school, the legal residence identified by the parents in their parenting plan will matter. RSA 194-B:2 says that “[a] pupil who meets the admission requirements of a chartered public school, and who is a resident of the district where the school is located, shall be given absolute admission preference over a nonresident pupil. (Emphasis added)

Once a child turns 18, he or she may establish their own legal residency. A young adult about to enter his or her senior year in high schoo l or who is in the middle of their last year in high school, can, if there is a family or relative in the school district with whom the student can live, always establish their own legal residency and remain in his or her current school.

Changing a Child’s School Placement

New Hampshire puts a high value on public education. See Claremont v. Governor (Claremont II) (1997). It is therefore not surprising that its laws will protect a child if their school placement (i.e., the child’s assigned school) will cause the child to suffer a manifest educational hardship or if it will be in the child’s best interest to attend a different school. In such cases, New Hampshire’s laws allow parents to ask their school board to place (“assign”) their child in another school, even if that school is in a different school district. And, given New Hampshire’s libertarian bent, it is not surprising that its laws also allow parents to seek to enroll their child in a different school district and to pay for the child’s tuition themselves.

RSA 193:3, I also states that “If the person having custody of the child is aggrieved by the decision of the school board, the person may appeal to the state board of education, and the state board of education, after investigating the case and giving notice to the school board, may order such child to attend another school in the same district if such school is available, or to attend school in another district…”

The State Board of Education has adopted rules relative to what constitutes a “manifest educational hardship.” RSA 193:3, II requires school districts to establish a “policy, consistent with the state board’s rules…” to permit an “assignment to a public school in another district when a manifest educational hardship is shown.” The school district must pay the tuition charged by the newly assigned school. It is the author’s opinion that the school district must also transport the child to the new school.

If changing a child’s school assignment is needed to protect a child’s best interest, RSA 193:3, III (a) can protect the child. That statute states: “Each school board shall establish a change of school assignment policy, based on the best interest of the child and requiring a vote of the school board to reassign a pupil from the public school to which he or she is currently assigned to another public school, or to approve a request from another school superintendent to accept a transfer of a pupil from a school district that is not part of the school administrative unit…” (Emphasis added)

There are statutory conditions (e.g., the superintendent must recommend the change of school assignment; the school board of each district involved must approve the reassignment) a parent must meet. See RSA 193:3, III(a)(1)(2)(3)(4).

Advocates should note that RSA 193:3, III, (d), provides that, when the assignment to a new school is based on the best interest standard, “The cost of transportation shall be the responsibility of the parent or legal guardian.”

RSA 193: 3, IV (a) permits a parent to seek to enroll a child in a “non-resident school district” by paying for the child’s tuition there: “Any person having custody of a child may apply to enroll that child in a public school or public academy outside the school district in which the person and child reside. If the non-resident school district or public academy agrees to enroll the child it may charge tuition to the parents…”

Other Protections

New Hampshire law also provides for special, educational protections for children who have or may have a qualifying disability under the IDEA or Section 504, children who have an IEP or a 504 Plan, or who may be eligible for one, but describing these in detail goes beyond the scope of this article, as are the educational protections available to “military children.” See RSA 170-D: 7, I, (a) (b) and (c). The law also provides for educational protection under RSA 193:12, V-a for a child, who, upon their parents’ divorce, may need to live temporarily with a relative.

To protect a particular child, research, independent analysis and thoughtful advocacy will always be needed. Help is available. Two highly respected school district lawyers, Dean Eggert and Alison Minutelli, have authored a helpful treatise on “Student Residency and Enrollment.” The treatise can be found on Eggert’s web page at Wadleigh, Starr & Peters, is another terrific online resource. The Parent Information Center and the Disabilities Rights Center in Concord are always good resources. So, too, are the websites and the educational specialists at the NH and US Departments of Education.

Michael Chamberlain is a member of the National Association of Counsel for Children, and a certified Child Welfare Law Specialist.

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