A student living part time with his father was still a resident of Wayland for educational purposes, despite the fact that he slept more nights at his mother’s house in Framingham, according to a Superior Court judge. Ames v. Wayland, Lawyers Weekly No. 12-087-14 (full decision available here). The Town sought to keep the 8th grader out of its schools based on its “pillow count” policy, which measured residency by the number of nights per week the child sleeps within the borders of the Town. The parents, by virtue of a divorce decree, had shared physical custody which resulted in the child spending 5 of 14 nights with his father and 9 with his mother. Wayland required a child to spend at least 3 of 5 school nights (Sunday through Thursday) with the in-Town parent, so by that measure the child failed to meet the quota, since he slept at Dad’s house only 3 of 10 school nights.
The father went to court to obtain a preliminary injunction requiring Wayland to accept the child into school. The court granted the injunction finding that the father had satisfied his burden of demonstrating a likelihood of success on the merits of the case. The court considered but did not resolve the question of whether M.G.L. c. 76, §5 requires the identification of a single town of residence. If not, the court reasoned, the father wins, since the custody arrangement provides for the child to reside with each parent. The court noted that this construction would foster the interests of children and would be in harmony with the education statutes generally, as well as the cases interpreting shared custody agreements.
The court went on to consider the standard advanced by the school district, requiring determination of which of the two towns could claim to be the “the principal location of the child’s domestic, social, and civil life.” The child previously attended Wayland schools through 4th grade, and had the prospect of rekindling old friendships there before going to high school. The school district sought to diminish the student’s contact to Wayland by pointing out connections to other towns, but they made no showing of a connection to Framingham, which was the only other choice presented. The court ruled that the pillow count was not dispositive on the question of the child’s domestic social and civil life. Balancing harms, the court considered the opinions of experts that Wayland would be a better fit for the student educationally and socially.
The court also rejected the school district’s suggestion that if the student sought special education services, those would have to wait until the Bureau of Special Education Appeals ruled on residency. The court’s ruling on residency would entitle the child to all needed services. The court also noted that it could not take special education services into account in assessing the potential harm to the district.
Special education regulations already provide, in some cases, for splitting out of district costs between towns if divorced parents reside in different towns. The best approach is to honor the dual residence recognized by the courts in custody matters, and allow the child to attend if they have a non-fraudulent claim to residing with either parent. If you have questions or concerns about residency matters, contact counsel before they develop into costly litigation.
