In A Divorce Situation School Districts May Have Shared Responsibility For Costs of Special Education

by Robert A. Muccilli, Esq.

In Somerville Board of Education v. Manville Board of Education, the New Jersey Appellate Division recently ruled that separate school districts in which the divorced parents of a student reside share in the responsibility for funding a student’s free and appropriate public education. The Court based its holding on the fact that the parents shared joint physical and legal custody and the student lived with each parent on alternate weeks.

The Court’s decision arose out of a dispute between the Somerville and Manville boards of education over which district should pay for the education of a special education student. One parent lives in Somerville and the other lives in Manville. The student lives with each parent on alternating weekends. The districts were in agreement as to program and placement, and the child continued to attend public school in Somerville. Somerville argued for shared responsibility based on the concept of the child having an “alternating domicile.” The Department of Education supported Manville’s position that Somerville should be solely responsible for the expenses, arguing that maintaining “educational continuity” dictated this result.

The Court recognized that the issue was one of first impression and adopted the “alternating domicile” concept. While the Court noted that ordinarily a child’s domicile is the same as that of the parent with whom the child lives, it explained that this single domicile rule required reexamination when divorced parents share equal parenting time under a joint custody arrangement. The Court rejected the Department’s concern about maintaining educational continuity, expressing the view that the Department’s objective would not be compromised because the districts had agreed on the child’s placement, and the Court assumed that the districts would continue to assess the child’s needs in good faith and participate in the program review process required under the Individuals With Disabilities Education Act.

The Court’s adoption of the “alternating domicile” concept may affect residency determinations involving non-disabled students whose parents are divorced where similar shared custody circumstances are present.

This article was written by Robert A. Muccilli, Esq., Shareholder in Capehart Scatchard’s Employment and School Law Groups. Should you have questions or like more information, please contact Mr. Muccilli at 856.914.2074, by fax at 856.235.2786, or by e-mail at rmuccilli@capehart.com.

© 2000 Capehart & Scatchard, P.A.

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