Enrolling a Child in School Without Custody in New York City?

Enrolling a child in school without custody is possible for as long as the custodial parent signs a written consent form allowing the child to live with the non-custodial parent and designating the child’s residence as that of the non-custodial parent’s.

New York Education Law § 3202 provides that a person over 5 and under 21 years of age is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition. Under this provision, a child can attend a school in the district that the child is a resident of.

If you have issues with enrolling a child in school without custody, we at the Law Offices of Albert Goodwin are here for you. You can call us at 212-233-1233 or send us an email at [email protected].

Determining the residence of a child for purposes of school enrollment

As a general rule, the child’s residence is presumed to be the residence of his or her parents or legal guardians. What happens when the child’s parents are divorced or live apart?

In this case, the divorce decree or custodial agreement will award custody to one parent (the custodial parent). The custodial parent’s residence is presumed to be the residence of the child. This is the district where the child should enroll in. This legal presumption, however, can be rebutted.

You can still enroll the child in school by showing proof that you have custody over the child. How can the non-custodial parent show proof of custody? A stipulation or consent agreement executed by the custodial parent designating the child’s residence to be that of the non-custodial parent’s can be considered sufficient proof of custody for purposes of Education Law § 3202.

In the case of Appeal of Barron, 231 Ed Dept Rep 1, the Commissioner allowed the enrollment of a child in the non-custodial parent’s school district based on a stipulation between the non-custodial parent and the custodial parent, purporting to modify the divorce decree by transferring custody of the child to the non-custodial parent. The Commissioner found that, although the stipulation did not legally modify the divorce decree, it found “compelling evidence that the child’s mother, as custodial parent, consented to her son’s legal residence with his father.” The execution of the stipulation successfully rebutted the presumption that the child’s residence was that of the custodial parent’s, and the child was found to be a district resident of the non-custodial parent’s district, allowing the child to attend such school in the district, tuition-free.

The Commissioner held:

“Where a child’s time is essentially divided between two households, the determination of the child’s residence must rest ultimately with the family. In such cases, the custodial parent may designate the child’s residence for purposes of Education Law § 3202. If no designation is made by the custodial parent, the presumption that the child’s residence is that of the custodial parent may still be overcome by demonstrating emancipation (Appeal of Forde, supra, p.361).”

For this reason, a non-custodial parent can enroll the child in his school district, provided he gets the written consent of the custodial parent, designating the child’s new residence to be that of the non-custodial parent’s. If the school refuses to enroll your child tuition free in your school district, despite evidence showing that the child resides with you and the custodial parent has agreed to this arrangement, you can appeal the school’s decision with the Board of Education of the school district, and ultimately, with the New York Commissioner of Education. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].