According to the law, adults are
allowed one domicile or legal residence. Domicile is the place where
a person intends to permenently reside. There is a long history of
case law that sets forth rules to , determine the residency of
adults. The law is much simpler as it applies to children:
Children have the domicile of their parents. If their parents don't
live together then children can have two domiciles. If the parents
are divorced and the parents have joint legal custody then children
will have two domiciles. This is true even if they never sleep at
one parent's home.
In a recent case, the Town of Wayland
formulated a rule to determine if children of divorced parents can
attend school in Wayland. Ames v. Town of Wayland, Middlesex Superior Court (No. 14-6717) (August 13, 2014.) The rule was called the “pillow count”
rule and required children to sleep in Wayland for at least three out
of five nights. When this rule resulted in a child of divorced
parents becoming excluded from the Wayland schools, the child's
parents appealed. A Superior Court Justice held that the child may
attend the Wayland schools despite the fact that he lived in Wayland
only three out of fourteen nights.
In Massachusetts, the Department of
Education has always ruled that children can attend school in the
school system where one of the parents reside and that the decision
belongs to the parents and not the school system. In my practice, I
have encountered this problem from time to time. I have found that
schools generally drop their opposition when faced with the threat of
litigation. Unfortunately, I found that parents have to hire
attorneys to make the schools follow the law.
When a couple gets divorced and they
have school age children, they should consider the choice of school
system at the time of divorce. If you are getting divorced and have
school age children, you should consult an experienced divorce attorney who understands the options of school choice.
