Section 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 or in RSA 193:28.
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 decision making responsibility or 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 residential responsibility or 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 residential responsibility or 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. If the court order is for equal or approximately equal periods of residential responsibility, the child's legal residence for school attendance purposes shall be as stated in the order. If a child is in a court-ordered residential placement, foster home, or group home pursuant to RSA 169-B, RSA 169-C, RSA 169-D, RSA 170-C, or RSA 463, residence shall be determined in accordance with RSA 193:27.
(3) If the minor is in the custody of a legal guardian appointed by a New Hampshire court of competent jurisdiction or a court of competent jurisdiction 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 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.
(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 education and special education costs.
(c)(1) If a parent with legal custody of a child moves from New Hampshire to another state while the child is in a court-ordered residential placement in this state or another state pursuant to RSA 169-B, RSA 169-C, RSA 169-D, RSA 170-C, or RSA 463, the departments of education and health and human services shall make a written request of the receiving state to assume the programmatic and financial liability of the child's placement in this state or another state until physical custody of the child is returned to a parent or legal guardian. In this subparagraph, ""receiving state'' shall mean the state to which the child's parents move.
(2) If the receiving state refuses to accept financial liability, the departments of education and health and human services shall enter into an agreement to provide the child with general and special education and residential services until legal custody of the child is returned to a parent or legal guardian.
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. The term ""homeless children and youths'' means individuals who lack a fixed, regular, and adequate nighttime residence, and shall include the following:
(a) Children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement.
(b) Children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings.
(c) Children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings.
(d) Migratory children, as defined in 20 U.S.C. 6399 who qualify as homeless because such children are living in circumstances as described in subparagraphs (a)-(c).
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, RSA 170-C, 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 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
(b) 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 guardianship.
V-b. Whenever a dispute arises among one or more school districts, the department of health and human services, or one or more of the previously mentioned parties, 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 shall request in writing that the superintendents involved resolve the dispute. If the residency dispute remains unresolved 10 days after such request, the department of health and human services shall request that the commissioner of the department of education determine the residence of the child. The child shall be permitted to 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. (a) The commissioner of the department of education, or designee, shall decide residency issues for all pupils, including homeless children and youths, in accordance with 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. In those instances when an agreement cannot be reached, the commissioner of the department of education, or designee, shall make a determination within 14 days of notice of the residency dispute and such determination shall be final. In any case, a written explanation shall be provided to the parties of record and a copy of such explanation shall be kept on file by the department of education. No school district shall deny a pupil attendance or implementation of an existing individualized education program.
(b) A pupil shall remain in attendance in the pupil's school of origin during the pendency of a determination of residency. If a child does not have a school of origin within this state, the child shall be immediately admitted to the school in which enrollment is sought pending determination of the residency dispute, provided such school is in the school district in which the child temporarily resides. For the purpose of this paragraph, ""school of origin'' means the school the child attended when permanently housed or the school in which the child was last enrolled.
(c) 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. 1997, 183:6. 1998, 206:1-3, 7, 8. 2001, 294:1. 2002, 138:7. 2003, 222:1, 2. 2005, 273:19. 2006, 236:1, 2, eff. July 31, 2006. 2008, 274:16 to 19, 32, eff. July 1, 2008.