Request By:
Mr. Thomas A. Pack
Mr. James V. Hatley
Directors of Pupil Personnel
Bullitt County Schools
P.O. Box 97
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As directors of pupil personnel in the Bullitt County Schools you have asked the Office of the Attorney General to consider several situations concerning residency for school purposes. You stated that with the recent rapid growth in population of Bullitt County the question of legal custody and residence has become a problem which needs to be clarified. The format of your letter was to provide background information by various situations and then present several questions relating to these situations. We will respond to your letter following the same format.
The first set of situations and questions presented were as follows:
"Situation 1: The Shelby County School System requires the completion of twenty credits for a non-vocational student and nineteen credits of a vocational student for graduation. Bullitt County requires the completion of eighteen credits of both for graduation. A student, 18 years of age, living in Shelby County, wants to enroll in the Bullitt County System to complete his senior year because of the fewer number of credits required for graduation. The student "moves in" with a friend who lives in Bullitt County and attempts to enroll in North Bullitt High School. Being 18 years of age, the student claims no one in Bullitt County has to have legal custody of him and that he can live and attend school outside the county of his parents residence.
Situation 2: A student 18 years of age is living in Jefferson County. Both parents are deceased and the student is living with a sister. Friction between the student and his sister causes the student to leave Jefferson County and move into Bullitt County to live with a cousin. Being 18 years of age, the student feels he can live and attend school anywhere he wants without anyone having legal custody.
Situation 3: A student 19 years of age lives and attends school in Jefferson County. As a result of 'busing' in Jefferson County, the student moves into Bullitt County. The student lives alone in a mobile home on property his parents own in Bullitt County. (The parents live in Jefferson County.) Because he is over 18 years of age, the student claims he can live and attend school outside the district of his parents residence free of any custody restrictions.
Question 1: Can we require the Bullitt County resident to get legal custody of a student living with them who is 18 years of age (or older) and whose parents live outside the Bullitt County School district?
Question 2: How does a student 18 years of age (or older) establish 'residence,' for school purposes, in a district outside the school district of his parents residence?"
Before responding to these first two questions it will be helpful to review the school law regarding residency. In KRS 158.030 it is provided that "every child residing in the district who is six years of age and over" has the privilege of attending the public common school in that district. (Emphasis supplied.) KRS 158.100 requires school districts to provide an approved twelve grade school service for all pupils residing in the district. Also, KRS 158.120 provides in pertinent part as follows: "Any board of education may charge a reasonable tuition fee per month for each child attending its schools whose parent, guardian or other legal custodian is not a bona fide resident of the district." Lastly, in the compulsory attendance chapter of Kentucky's school laws, we find KRS 159.010 which states: "Except as provided in KRS 159.030, each parent, guardian or other person residing in the state and having in custody or charge any child between the ages of seven (7) and sixteen (16) shall send the child to a regular public day school for the full term that the public school of the district in which the child resides is in session, or to the public school that the board of education of the district makes provision for the child to attend." (Emphasis supplied.)
The office, on a number of occasions, has considered the issue of residence of a child for school purposes. In OAG 76-116, copy attached, we discussed the term "reside. " We noted that the Kentucky Court of Appeals consistently has interpreted the term "residing" or "residence" as used in the school attendance laws as meaning actual residence rather than legal domicile. We pointed out that in our opinion the key factor in considering residence for tuition-free school purposes was where the child is an inhabitant or where he lives in fact. We noted that the residence of a child is ordinarily the same as the residence of the child's parents.
Since OAG 76-116 was written, several other residency for school purposes problems have been presented for our consideration. For example, in OAG 77-311, copy attached, we concluded that children placed in a foster home had a right to attend school in the school district where the foster home was located. We quoted from Crain v. Walker, 222 Ky. 828, 2 S.W.2d 654 (1928), which referred to Board of Trustees of Stanford Graded School District v. Powell, 145 Ky. 93, 140 S.W. 67 (1911), as follows:
"[The Powell case] expressly holds that 'for school purposes a child's residence is not necessarily the residence of its parent or parents,' and that, if it has assumed a permanent home with some other person standing in loco parentis to it, then the residence of the child for school purposes is the same as that of such person."
Also, in OAG 78-6, copy attached, we concluded that a school board's relationship is with married students themselves save the matter of the privacy of a student's records. Our opinion in this regard was based upon the premise that a minor child upon marriage becomes emancipated. A married minor is no longer under the care and control of a parent. While we did not address an issue of residency for tuition-free school purposes of a married minor in this opinion, we believe it must be concluded that a married minor is entitled to attend school tuition free in the school district in which the married minor establishes residency. Such residency may very possibly be in a school district foreign to that of the minor child's parents.
In your first set of questions, we are confronted with yet additional variables, those being the child who has reached the age of majority and the separate issue of custody. As to the first of these variables, a child is considered to be emancipated by operation of law on arriving at the age of majority, which is eighteen in Kentucky. KRS 2.015. We are of the opinion that a child who has reached his or her eighteenth birthday is entitled to attend school without payment of tuition in the school district in which he or she actually resides. There is no need to consider any issue of custody concerning an eighteen-year-old nor the residency of the individual's parents. An emancipated eighteen-year-old may acquire residency in the same manner as any other adult. A "residence" is a factual place of living. See OAG 76-116, supra. There should, however, be evident a reasonable degree of permanency in the residence. The fact that the eighteen-year-old resides with friends or relatives is of no consequence.
The second set of situations and questions were stated by you as follows:
"Situation 1: During the summer two children, ages 11 and 13, moved from Jefferson County into Bullitt County to live with their natural father, Since their mother has legal custody of the children, we have required the father to petition the juvenile court for temporary custody.
Situation 2: A child moved from Michigan where her mother works in an automobile factory to Bullitt County to live with her aunt. The child's mother claimed that she was not able to care for the child in her present situation. The juvenile court awarded temporary custody to the aunt.
Situation 3: A 15 year old child moved into Bullitt County to live with his sister. The child was allowed to enroll in a Bullitt County school because the sister had been awarded guardianship by the Jefferson County Court. However, the guardianship papers stated that the sister was to be the child's guardian 'for educational purposes only.'
Question 1: Can we require a natural parent to secure legal custody when the court has awarded full custody to the other parent? (as in divorce proceedings)
Question 2: Can we require permanent court awarded custody rather than temporary custody?
Question 3: Does temporary custody awarded by the juvenile court constitute legal custody for school purposes?
Question 4: Does guardianship for education purposes only constitute legal custody?
Question 5: What constitutes legal custody? "
Your questions in this second set present a different type of custody problem. "Custody" is having the care and keeping of anything. Black's Law Dictionary. "Legal custody" may be characterized as custody that is authorized, recognized or created by law or legal authority. For discussion purposes, "legal custody" might be legitimately differentiated from "mere custody" or that not sanctioned by law or legal authority. While the new district courts, in juvenile session, have jurisdiction to determine temporary legal custody of a child who has not reached his or her eighteenth birthday, it is the circuit courts which have jurisdiction over matters of permanent awards of custody of a child although the circuit court may, too, determine temporary custody. KRS 208.020(6) and KRS 403.260, 403.280 respectively. We believe a school district is required to admit for enrollment, tuition free, a child living with the child's custodian declared by court order or other legal process who resides in the school district. Irrespective of whether the court order is one for temporary custody, that status having been determined by the district juvenile court or the circuit court, or one for permanent custody by the circuit court, the school district must recognize the order for school attendance purposes. We do not believe the school has any right to require a person having temporary legal custody of a child to seek permanent court awarded custody. This is a matter for the interested parties before the court and the court, but not for the school district.
It is a different matter, however, regarding the situation of a child living with someone other than the person who has legal custody of the child. As a general rule, we believe a child would only be entitled to attend school tuition free in the school district in which the legal custodian resides. However, if a child is not living with his or her legal custodian, we believe the circumstances surrounding such a situation must be considered on a case-by-case basis. We do not believe it to be unreasonable in such situations for the school district to place the burden on the party having "mere custody" of a child rather than legal custody to show why tuition should not be charged for school attendance. It is not too difficult to imagine such situations as a child living with grandparents or even with friends out of a matter of basic physical necessity and with no form of legal intervention having taken place. If the facts of such a situation would establish that the child was not residing in a particular school district primarily for school purposes, we believe tuition generally would not be chargeable. The school board must exercise reasonable, unarbitrary discretion in considering these matters.
Also as a part of your second set of questions you ask about guardianship. Guardianship is provided for in KRS Chapter 387. As this office noted in OAG 75-170, copy attached, this chapter of the Kentucky statutes makes no provision for a guardian "for school purposes only." Nevertheless, we believe that it is the duty of the school system to honor the presentment of a court order appointing a guardian. The child is entitled to go to school tuition free in the school district in which the guardian is a resident.
Your last questions refer specifically to KRS 159.010, a part of the State's compulsory attendance law. As noted earlier in this opinion, this statutory provision requires, with limited exceptions, "each parent, guardian or other person residing in the state and having in custody or charge" a child between the ages of seven and sixteen to have that child in attendance at a regular public day school. Your questions concern the meaning of the term "custody, " "charge," and "other person" as used in this statute. Although these terms are not defined for use in KRS Chapter 159, we believe the directive of KRS 446.080 is quite germane in this regard. KRS 446.080(1) and (4) read as follows:
"(1) All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state.
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(4) All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning."
Thus, since the compulsory attendance laws are directed to those having responsibility in some respect over children residing in the Commonwealth, we believe the intent of the General Assembly in using the terms "other person" and "custody or charge" was to be as all encompassing as possible. This statutory language covers everyone from the adult having legal custody of a child to one having mere custody or control, under their charge, of a child, as discussed above.