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New Hampshire Department of Education

Questions and Answers Regarding Residency

* Does New Hampshire law provide a definition of residency for school attendance purposes?

Yes, RSA 193:12 defines legal resident.

* Who decides residency issues?

The Superintendent decides residency issues. If parents reside in two separate school districts, the Superintendent shall consult with the Superintendent of the other school district. Local policy should guide a district in determining the role of the local board in decisions making regarding residency.

* May parent(s) appeal the residency decision of the Superintendent/School Board?

Yes. If the dispute involves two superintendents, the issue may be referred to the Commissioner of Education. If the dispute is related to the district of liability for the cost of special education and related services, or if the dispute is between the superintendent/school board and parent(s), the parents(s) may appeal to the State Board of Education.

* If in a divorce decree the court assigns a school district which is not the legal residence of a child, should the district comply?

Probably, but the Superintendent should seek the advice of legal counsel.

* If a non-resident parent has physical custody of a child, may the parents seek a change in custody through guardianship, rather than through a divorce proceeding.

Yes.

* Once guardianship papers are filed in Probate Court, how long should a district wait for the courts to act?

A reasonable expectation for Probate Court action is between 45 and 60 days.

* Does RSA 193:12 apply to attendance areas (neighborhood schools) within a school district?

No, but school districts may adopt a policy establishing neighborhood school geographic boundaries and may want to establish a procedure for granting an exemption.

* RSA 193:12 discusses the legal residence of a minor. What is a minor under this law, and what is a district's responsibility to educate a child over the age of 18?

For purposes of RSA 169-B, Delinquent Children, a minor means a person under the age of 17; RSA 21:44, Age of Majority: Adults, refers to adults as persons who have attained the age of 18 years. However, it is the duty of a school district to provide an education for all children who reside in the district until a child has aquired a high school diploma or has reached age 21.

* If a child is 18 years of age or older and does not live with either parent, where does the child attend school?

A child 18 years of age or older may declare his/her residency and is entitled to attend a school in the district in which he/she resides.

* If a parent places a child with a friend or relative while being out-of-state or out-of-country, may the child attend school in the district in which the friend or relative resides?

Yes, if there is an intention of the parent(s) to return to a principal dwelling in the school district. If parent(s) are renting or leasing an apartment and the lease is terminated, the child may not attend school in that district; however if the parent(s) sublet the apartment the child may attend school in the district in which the friend or relative resides.

* Should a school district have an admission and attendance of non-resident pupils policy?

Yes. Under state law such policy is required. This policy should minimize disputes of interpretation.

* Is transportation for a non-resident child required?

Typically a school district is not responsible for transportation outside its geographic boundaries, however RSA 189:6 does establish certain transportation requirements.

* If a child is a child of homeless parents and they reside in a school district, is the school district responsible for educating the homeless child?

If the parent(s) and/or child lives in a shelter within the school district, the child is entitled to an education in the district. If a parent(s) and/or child lives in a motel or elsewhere on a temporary basis and formerly lived in another school district, either school district may be required to provide an education in accordance with the McKinney Act. (For additional information contact Lynda Thistle-Elliott, NH Department of Education, 271-3840)

* If the Department of Health and Human Services places a child with a relative or friend where does the child attend school?

The child is entitled to attend school in the district in which the friend or relative resides.

* If the Department of Health and Human Services places the child with a friend of relative and the child is receiving special education and related services, which school district is responsible for the cost of special education and related services?

If a parent(s) does not have legal custody, the school district in which the child resided prior to being placed by the Department is the liable district. If a parent(s) retains legal custodfy, the liable school district is the district in which the parent(s) reside.

The liability of a school district is either (1) the average cost per child of the receiving district or (2) the actual prorated cost of special education & related services.

* If a child placed by the Department of Health and Human Services or a court attends school in the district and is not receiving special education and related services may a school district seek reimbursement from the school district in which the child resided prior to being placed by the Department or the court?

No.

* If a child reaches the age of 17 and remains in a Department of Health and Human Services or court-ordered placement who is financially liable?

The legally liable school district is the one in which the child resided prior to being placed by the Department of Health and Human Services or the court.


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Technical Assistance Advisory

Residency

Purpose.

The purpose of this Technical Assistance Advisory is to clarify existing law with respect to a pupil's district of residency and school district liability for educational costs when a child is placed in a home for children; the home of a relative or friend by the Department of Health and Human Services or a court of competent jurisdiction pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463; health care facility; or state institution.

Definitions. The following definitions shall apply:

    (a) "Legal residence" means, in the case of a minor, where the parents reside, except:

        (1) If parents live apart and are not divorced, legal residence is the residence of the parent with whom the child resides.

        (2) If parents are awarded joint legal custody the legal residence of a minor child is the residence of the parent with whom the child resides.

        (3) If a parent is awarded sole or primary physical custody, legal residence of a minor child is the residence of the parent who has sole or primary physical custody.

        (4) If the parent with sole or primary physical custody lives outside the state of New Hampshire, a minor child does not have residence in New Hampshire.

        (5) If the parents are awarded joint or shared physical custody legal residence of a minor child is the residence of whichever parent has primary physical custody. If primary physical custody is not awarded by a court of competent jurisdiction the legal residence of a minor child is the residence of the parent with whom the child resides more than 50% of the school week, or 3 days out of the 5-day school week.

    (b) "Legal guardian" means a person appointed by a probate court in New Hampshire or a court of competent jurisdiction in another state, territory, or country. A legal guardian shall not be appointed solely for the purpose of allowing a pupil to attend school in a district other than the district of the minor's parent or parents.

    (c) "Legal resident" as defined by RSA 193:12, III means:

        (1) Legal resident of a school district is "a natural person who is domiciled in the school district and who, if temporarily absent, demonstrates an intent to maintain a principal dwelling place in the school district indefinitely and to return there, coupled with an act or acts consistent with that intent.

        (2) A married person may have a domicile independent of the domicile of his or her spouse.

        (3) If a person removes to another town with the intention of remaining there indefinitely, that person shall be considered to have lost residence in the town in which the person originally resided even though the person intends to return at some future time.

        (4) A person may have only one legal residence at a given time."

    (d) "Home for children or health care facility" means any

        (1) Orphanage;

        (2) Institution for the care, treatment, or custody of children;

        (3) Child care agency as defined by RSA 170-E:25, II and III;

        (4) A residential school approved under RSA 186:11, XXIX; or

        (5) A program approved pursuant to Ed 1133.

    (e) "Child of homeless parents" means a child whose parents:

        (1) Lack a fixed, regular and adequate residence; or

        (2) Have a primary nighttime residence in a supervised publicly or privately operated shelter for temporary accomodations such as:

            a. Public assistance hotels,
            b. Emergency shelters,
            c. Battered women's shelters, and transitional housing facilities, or
            d. A public or private place not designated for, or ordinarily used as, a regular sleeping accomodation for human beings.

    (f) "Home of a relative or friend" means an unlicensed home of a relative or friend where a child has been placed by the Department of Health and Services or a court of competent jurisdiction. "Friend" means any non-relative.

    (g) "Legal custody" means an award of legal custody by a court of competent jurisdiction, in this state or in any other state. A parent shall not have legal custody if legal custody has been awarded to some other individual or agency, even if that parent retains residual parental rights.

    (h) "Placement" means the physical placement of a child in a residence. For purposes of assigning financial or programmatic responsibility for a child's education or special education and related services, it shall not include incidental, transient, or short-term stays of an emergency nature.


Legal Residence and Right of Attendance.

    (a) No person shall attend school, or send a pupil to the school, in any district of which the pupil is not a legal resident, without the consent of the district or of the school board.

    (b) In accordance with RSA 189:1-a, "It shall be the duty of the school board to provide, at district expense, elementary and secondary education to all pupils who reside in the district until such time as the pupil has acquired a high school diploma or has reached age 21, whichever occurs first; provided, that the board may exclude specific pupils for gross misconduct or for neglect or refusal to conform to the reasonable rules of the school, and further provided that this section shall not apply to pupils who have been exempted from school attendance in accordance with RSA 193:5."

    (c) "Whenever any child is placed and cared for in any home for children, or is placed by the department of health and human services in the home of a relative or friend of such child pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, such child, if of school age, shall be entitled to attend the public schools of the school district in which said home is located unless such placement was solely for the purpose of enabling a child residing outside said district to attend such schools, provided that the school district for a child placed in a group home, as defined in RSA 170-D:25,II(b), within a cooperative school district, shall be the cooperative school district." (RSA 193: 28)


Education of a Child Placed And Cared For In Any Home For Children.

    (a) Nothing shall limit or abridge the right of any child placed and cared for in any home for children, as defined in RSA 193:27, to attend school in the district in which the home is located.

    (b) Any child placed in the home of a relative or friend by the Department of Health and Human Services, or by a court pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, may attend the public schools of the school district in which the home for children or home of the relative or friend is located.

    (c) Whenever a parent or guardian voluntarily places a child with a relative at the recommendation or request of the Department of Health and Human Services, that child shall be permitted to attend the public schools of the school district in which that relative resides provided that:

"Upon request of the school district, the Department of Health and Human Services shall confirm that the department recommended or requested that the child be placed with the relative to promote the child's well being, and not for the purpose of allowing the child to attend school in the district where the relative resides; and

Upon request of the school district, the relative shall take reasonable steps to secure a court award of guardianship over the child; the child being allowed to attend school in that district while the relative seeks guardianshiop." (RSA 193:12,V,a)

Legal Guardianship

    (a) Legal guardianship shall not be appointed solely for the purpose of allowing a pupil to attend school in a district other than the district of residence of the minor's parent or parents.

    (b) Whenever a petition for guardianship or legal custody is filed in a court of competent jurisdiction on behalf of a relative of a child, other than a parent, the child shall be permitted to attend school in the district in which the relative of the child resides pending a court determination relative to custody or guardianship.

    (c) Upon the request of the school district, the relative shall take reasonable steps to secure a court award of guardianship over the child, and the child shall be allowed to attend school in that district while the relative seeks guardianship.

    (d) Any change of legal guardianship shall be filed with and approved by the probate court.

    (e) If guardianship papers are filed with thie probate court, the pupil shall be entitled to attend school in the district in which the guardian resides.

    (f) Once guardianship is approved, the pupil shall be a resident of the school district in which the guardian resides.


Liability of School District for Special Education Costs.

    (a) If a child is:

        (1) placed in a home for children, the home of a relative or friend by the Department of Health and Human Services or a court of competent jurisdiction pursuant to RSA 169-B, RSA 169-C, or RSA 463, health care facility, or state institution; and

        (2) the child is not in the legal custody of a parent or if the parent resides outside the state, then the school district in which a child most recently resided prior to such placement shall be liable for the cost of special education and related services. However, if the child is retained in the legal custody of a parent residing within the state, the school district in which the parent resides shall be liable for the cost of special education and related services.

    (b) If custody is transferred subsequent to the original placement of a child in a home for children, the home of a relative or friend in which the child is placed by the Department of Health and Human Services or a court of competent jurisdiction pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, health care facility, or state institution, then the "sending district" shall be, from the change in legal custody or guardianship forwards, that district in which the child resided at the time of the original placement.

    (c) If a pupil 17 years of age or older, who is living independently, is placed in a non-residential facility by the Department of Health and Human Services or a a court of competent jurisdiction pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, the pupil shall be considered a resident of the school district in which he/she is living.

    (d) If a pupil 17 years of age or older is placed in a residential facility by the Department of Health and Human Services or a a court of competent jurisdiction pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, the school district which was liable for the cost of special education and related services immediately prior to the pupil's 17th birthday shall remain the school district of liability.

    (e) If a child is placed by the Department of Health and Human Services or a a court of competent jurisdiction pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, and the parent resides outside the state of New Hampshire, the district of liability shall be determined in accordance with the interstate agreement.


Appeals: Residency

    (a) The superintendent shall decide all residency issues within a school district.

    (b) If more than one school district is involved in a residency dispute or the parents who live apart cannot agree on the residence of a minor child, the respective superintendents shall jointly make such decision.

    (c) In those instances when an agreement between superintendents cannot be reached within 10 days, the Commissioner of Education shall make a determination.

    (d) The Superintendents shall jointly submit to the Commissioner a written Request for Determination of Residency identifying the specific issues involved in the residency dispute.

    (e) The Commissioner, upon receipt of the written Request for Determination of Residency, shall utilize the provisions of Ed 200, except that Ed 213 shall apply to a proceeding before the Commissioner.

    (f) A decision of the Commissioner of Education may not be appealed to the State Board of Educaiton.

    (g) If the residency dispute does not involve more than one school district the dispute shall be resolved by the local school board. Such decision may be appealed to the State Board in accordance with Ed 200.

    (h) During the pendency of a determination of residency, a pupil shall remain in attendance in the pupil's current school.


Appeals: District of Liability

    (a) The State Board of Education shall determine the district of liability in disputes involving a special education child placed in the home of a relative of that child by the Department of Health and Human Services, or placed in the home of a relative or friend by a court pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463.

    (b) Such determination shall be made in accordance with rules adopted by the State Board of Education.


Nonresidents.

    (a) No person shall attend school, or send a pupil to the school, in any district of which the pupil is not a legal resident, without the consent of the district or of the school board except as otherwise provided by a law or a local school board policy.

    (b) Each school district shall adopt an admission and attendance of non-resident student's policy.

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New Hampshire Revised Statues Annotated

193:12. Legal Residence Required.

I. Notwithstanding any other provision of law, no person shall attend school, or send a pupil to the school, in any district of which the pupil is not a legal resident, without the consent of the district or of the school board except as otherwise provided in this section.

II. For purposes of this section, the legal residence of a pupil shall be as follows:

    (a) In the case of a minor, legal residence is where his or her parents reside, except that:

        (1) If the parents live apart and are not divorced, legal residence is the residence of the parent with whom the child resides.

        (2) In a divorce decree where parents are awarded joint legal custody the legal residence of a minor child is the residence of the parent with whom the child resides. If a parent is awarded sole or primary physical custody by a court of competent jurisdiction in this or any other state, legal residence of a minor child is the residence of the parent who has sole or primary physical custody. If the parent with sole or primary physical custody lives outside the state of New Hampshire, the pupil does not have residence in New Hampshire.

        (3) If the minor is in the custody of a legal guardian appointed by a New Hampshire court of competent jursidiction or a court of competent jursidiction in another state, territory, or country, legal residence is where the guardian resides. If the department of health and human services has been appointed legal guardian, the residence of the minor is where the child is placed by the department or the court. Legal guardianship shall not be appointed solely for the purpose of allowing a pupil to attend school in a district other than the district of residence of the minor's parent or parents. Whenever a petition for guardianship or legal custody is filed in a court of competent jursidiction on behalf of a relative of a child, other than a parent, the child shall be permitted to attend school in the district in which the relative of the child resides pending a court determination relative to custody or guardianship.

    (b) No minor placed in a home for children or health care facility, as defined in RSA 193:27, by another state which charges the state of New Hampshire, a political subdivision of the state of New Hampshire, or a New Hampshire school district, for the regular or special education costs for New Hampshire children placed in that state, shall be deemed a legal resident for purposes of school assignment, unless the sending state agrees to reimburse the receiving district, as defined in RSA 193:27, for regular and special education costs.

III. For the purposes of this title, "legal resident" of a school district means a natural person who is domiciled in the school district and who, if temporarily absent, demonstrates an intent to maintain a principal dwelling place in the school district indefinitely and to return there, coupled with an act or acts consistent with that intent. A married person may have a domicile independent of the domicile of his or her spouse. If a person removes to another town with the intention of remaining there indefinitely, that person shall be considered to have lost residence in the town in which the person originally resided even though the person intends to return at some future time. A person may have only one legal residence at a given time.

IV. For the purposes of this section, the legal residence of a child of homeless parents is where the child temporarily resides unless the parents and another school district agree that the child's attendance in school in that school district would be in the best interests of the child in that continuity of education will be provided and transportation will not be unduly burdensome to the school district. "A child of homeless parents" means a child whose parents:

    (a) Lack a fixed, regular and adequate residence; or

    (b) Have a primary nighttime residence in a supervised publicly or privately operated shelter for temporary accomodations such as public assistance hotels, emergency shelters, battered women's shelters, and transitional housing facilities, or a public or private place not designated for, or ordinarily used as, a regular sleeping accommodation for human beings.

V. Except as provided in subparagraph II(b), nothing in this section shall limit or abridge the right of any child placed and cared for in any home for children, as defined in RSA 193:27, or of any child placed in the home of a relative of that child by the department of health and human services, or placed in the home of a relative or friend by a court pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, to attend the public schools of the school district in which the home for children or home of the relative or friend in which a child is placed by the department of health and human services or by a court of competent jurisdiction is located, as provided in RSA 193:28.

V-a. Whenever a parent or guardian voluntarily places a child with a relative at the recommendation or request of the department of health and human services, that child shall be permitted to attend the public schools of the school district in which that relative resides provided that:

    (a) Upon request of the school district, the department of health and human services shall confirm that the department recommended that the child be placed with the relative to promote the child's well being, and not for the purpose of allowing the child to attend school in the district where the relative resides; and

    (b) Upon request of the school district, thte relative shall take reasonable steps to secure a court award of guardianship over the child, the child being allowed to attend school in that district while the relative seeks guardianship.

V-b. Whenever a dispute arises between 2 or more school districts as to the residency of a child who is in the legal custody or guardianship of the department of health and human services, or who has been placed pursuant to a court order in a proceeding under RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, the department of health and human services may request in writing that the respective superintendents resolve the dispute. If the residency dispute remains unresolved 10 days after such request, the departmentof health and human services may request that the commissioner of the department of education determine the residence of the child. The child may attend school in the district in which the child has been placed by the court or the department of health and human services pending the resolution of the residency dispute. Liability as to the cost of school attendance provided under this paragraph shall be determined by the commissioner of education.

VI. The superintendent shall decide residency issues under this section. If more than one school district is involved in a residency dispute or the parents who live apart cannot agree on the residence of a minor child, the respective superintendents shall jointly make such decision.l In those instances when an agreement cannot be reached in a timely manner, the commissioner of education shall make a determination and such determination shall be final. No school district shall deny a pupil attendance or implementaiton of an existing individual education plan. A pupil shall remain in attendance in the pupil's current school during the pendency of a determination of residency. Notwithstanding the provisions of RSA 21-N:11, III any person aggrieved by a determination of the commissioner may appeal such determination to a court of competent jurisdiction.

VII. Nothing in this section shall require a district to provide transportation for a student beyond the geographical limits of that district.

VIII. Each school district shall adopt an admission and attendance of non-resident students policy.

IX. The commissioner of education may enter into agreements with other states relative to liability for educational costs, including special education costs, of students placed in New Hampshire by those states, or of students placed outside the state of New Hampshire.

X. For the purpose of determining liability for a child placed and cared for in any home for children or health care facility, the provisions of RSA 193:29 shall apply.

Source. RS 73:7. CS 77:7. GS 83:1. GL 91:1. PS 93:1. 1921, 85, III:9. PL 118:11. 1927, 58:1. RL 137:11. RSA 193:12. 1955, 227:2, 263:1, eff. July 1, 1956. 1997, 183:6, eff. Jan 1, 1998. 1998, 206:1-3, eff. June 18, 1998



Education of Children Placed in Homes for Children,
Health Care Facilities, or State Institutions.

193:27. Definitions. As used in this subdivision:

I. "Home for children" means any orphanage; institution for the care, treatment, or custody of children; child care agency as defined by RSA 170-E:25, II and III; or any residential school approved under RSA 186:11, XXIX.

II. "Health care facility" means any hospital, nursing home, sheltered home, or other institution licensed under RSA 151.

III. "State institution" means the New Hampshire hospital, Laconia developmental services, and the youth development center.

IV. "Sending district" means the school district in which a child most recently resided other than in a home for children, the home of a relative or friend in which a child is placed by the department of health and human services or a court of competent jurisdiction pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, health care facility, or state institution, if such child is not in the legal custody of a parent or if the parent resides outside the state; if the child is retained in the legal custody of a parent residing within the state, "sending district" means the school district in which the parent resides. For the purposes of this paragraph a parent shall not have legal custody if legal custody has been awarded to some other individual or agency, even if that parent retains residual parental rights. When custody is transferred subsequent to the original placement of a child in a home for children, the home of a relative or friend in which a child is placed by the department of health and human services or a court of competent jurisdiction pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, health care facility, or state institution, the "sending district" shall be, from the change in legal custody or guardianship forward, that district in which the child resided at the time of the original placement. An award of legal custody by a court of competent jursidiction, in this state or in any other state, shall determine legal custody under this paragraph.

V. "Receiving district" means the school district in which a home for children or health care facility is located if a child who is placed therein attends a public school in that district or receives educational services from that district.

VI. "School district" means a school district in the state.

Source. 1981, 326:1. 1982, 39:6. 1985, 241:1, 2; 355:3, 4. 1988, 107:5. 1990, 257:9, eff. Jan. 1, 1991. 1998, 206:4, eff. June 18, 1998


193:28 Right of Attendance. Whenever any child is placed and cared for in any home for children, or is placed by the department of health and human services in the home of a relative or friend of such child pursuant to RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, such child, if of school age, shall be entitled to attend the public schools of the district in which said home is located, unless such placement was solely for the purpose of enabling a child residing outside said district to attend such schools, provided that the school district for a child placed in a group home, as defined in RSA 170-E:25, II(b), within a cooperative school district, shall be the cooperative school district, not the pre-existing district within the cooperative.

Source. 1981, 326:1. 1993, 322:7, eff. July 1, 1993. 1998, 206:5, eff. June 19, 1998


193:29. Liability for Education of Children in Homes for Children or Health Care Facilities.

I. For any child placed and cared for in any home for children or health care facility, the sending district shall make payments to the receiving district as follows:

    (a) For a child attending a public school in the receiving district who receives special education as required by RSA 186-C, the sending district is liable for either the average per pupil cost of the receiving district as estimated by the state board of education under RSA 193:4, or for the actual prorated cost of the special education and any educationally related services, as defined in RSA 186-C:2, provided by the receiving district, whichever is greater.

    (b) For a child attending a public school to which the receiving district as defined in RSA 193:27 shall pay tuition under an AREA or other contractual agreement, the sending district as defined in RSA 193:27 is liable for all costs which said receiving district must pay under that agreement.

    (c) If a child is assigned to an out-of-district special education program, the sending district is liable for all costs under RSA 186-C.

II. Actual fiscal liability under paragraph I commences upon enactment of this statue. However, the determination of liability as applied in paragraph I refers to children placed in a home for children or health care facility prior to as well as subsequent to enactment.

III. If the receiving district receives any state or federal aid for educating a child in any home for children or health care facility, including but not limited to aid for foster children under RSA 198:23, that amount shall be deducted from the liability of the sending district for that child.

IV. The agency responsible for placing the child shall inform the sending and receiving districts of where the child presently resides and where the child last resided before placement in a home for children, health care facility, or state institution or where the parent of the child resides if the child is in the legal custody of a parent who resides within the state.

V. The cooperative school district, not the pre-existing district, shall be liable for the cost associated with the education of children placed in a group home, as defined in RSA 170-E:25, II(b), within such cooperative school district provided, however, that the provisions of RSA 193:29, I(a) shall apply to children receiving special education.

Source. 1981, 326:1. 1982, 39:7. 1983, 286:1. 1993, 322:8, eff. July 1, 1993.

Document source: New Hampshire Department of Education, hardcopy.


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