Del. Code 14, § 202 : Education — The Public School System — System Of Free Public Schools — Free schools; ages; attendance within school district; nonresidents of Delaware

Current through 2016 Legislative Session, Act 399

(a) The public schools of this State shall be free to persons who are residents of this State and who are age 5 years through 20 years inclusive when they are attending kindergarten through grade 12.

(b) The public schools of any school district which maintains schools established under § 203 or § 204 of this title for persons below the age of 5 years shall be free to persons who are residents of such school district and who have attained the specified age below the age of 5 years for which such schools are established.

(c) Persons attending the public schools of this State shall attend the public schools in the school district within which they reside, except as provided in Chapters 4, 5 and 6 of this title and in Chapter 92, Volume 23, Laws of Delaware, as amended by Chapter 172, Volume 55, Laws of Delaware. Notwithstanding the foregoing, homeless children and unaccompanied youth, as defined by 42 U.S.C. § 11434a, shall attend school in accordance with the McKinney-Vento Homeless Education Assistance Improvement Act [ 42 U.S.C. §§ 11431 to 11435 ]; provided any person determined to be ineligible under the act may be denied enrollment. For the purpose of this section and provisions of the McKinney-Vento Homeless Education Assistance Improvement Act [ 42 U.S.C. §§ 11431 to 11435 ], the words "awaiting foster care placement" include all children in foster care.

(d) Persons who are nonresidents of this State may attend the public schools of this State under such terms and conditions as may be otherwise provided by law.

(e)

(1) For purposes of this section, a student shall be considered a resident of the school district in which that student's parents or legal guardian resides. If the child's parents do not reside together and a court of appropriate jurisdiction has entered a custody order, the child's residency for school attendance purposes shall be determined as follows unless otherwise agreed in a writing signed by both parents:

a. In cases in which 1 parent is awarded sole custody, the child shall be considered a resident of the district in which the sole custodian resides.

b. In cases in which the parents are granted joint custody, the child shall be considered a resident of the district in which the primary residential parent resides.

c. In cases in which the parents are granted shared custody, the child may be considered a resident of either parent's district.

Under no circumstances shall a child be enrolled in 2 different schools at the same time.

(2) If a child seeks to be considered a resident of a particular school district based on the residence of anyone other than that child's parent or parents or legal guardian, the student must have:

a. A signed order from a court of appropriate jurisdiction granting custody to or appointing as the child's guardian the resident with whom that child is residing; or

b. Suitable documentation certifying that the child resides within the district by action of the State or approval by the school district to be considered the student's residence; or

c. A completed and notarized Establishment of Delegation of Power to Relative Caregivers to Consent for Registering Minors for School (also known as "Caregivers School Authorization") pursuant to subsection (f) of this section confirming a caregiver's ability to provide consent in those cases where the student is being cared for by an adult relative caregiver without legal custody or guardianship.

(3) Children under the care or custody of the Department of Services for Children, Youth and Their Families are exempted from the provisions of this subsection. Children in the care and custody of the Department of Services for Children, Youth and Their Families who are in foster care shall attend school in accordance with the McKinney-Vento Homeless Education Assistance Improvement Act ( 42 U.S.C. §§ 11431 to 11435 ).

(f)

(1) A child may be enrolled in a particular school district based upon the submission of a Caregivers School Authorization if the following conditions are satisfied:

a. The child resides with a relative caregiver who is 18 years of age or older, is a Delaware resident, and resides in the district in which the child seeks enrollment;

b. The child resides with the relative caregiver as a result of:

1. The death, serious illness, incarceration or military assignment of a parent or legal guardian;

2. The failure or inability of the parent or legal guardian to provide substantial financial support or parental care or guidance;

3. Alleged abuse or neglect by the parent, legal guardian or others in the parent or legal guardian's residence;

4. The physical or mental condition of the parent or legal guardian which prevents necessary care and supervision of the child;

5. The loss or uninhabitability of the student's home as the result of a natural disaster; or

6. Other circumstances as deemed appropriate by the school district;

c. The child is not currently subject to an expulsion from school (as set forth in § 4130 of this title) or suspended from school for conduct that could lead to expulsion;

d. The child's residency with the caregiver is not for the purpose of:

1. Attending a particular school (although a caregiver's school district may be considered when deciding placement of the child as between 2 or more relative caregivers);

2. Circumventing the Enrollment Choice Program (Chapter 4 of this title);

3. Participating in athletics at a particular school;

4. Taking advantage of special services or programs offered at a particular school; or

5. Other similar purposes; and

e. The caregiver submits to the school district in which the child seeks enrollment a completed and notarized Caregivers School Authorization using the most recent form developed for this purpose by the Department of Health and Social Services. The Caregivers School Authorization must include the following:

1. The name and date of birth of the child;

2. The name, address and date of birth of the caregiver;

3. The names of the child's mother, father, legal custodian or guardian;

4. Relationship of the caregiver to the child, documented by proof of relationship as defined by regulation;

5. A statement that the caregiver has full-time care of the student, documented as required by regulation;

6. A statement indicating which of the circumstances described in paragraph (f)(1)b. of this section applies;

7. A statement that the caregiver will be the person responsible for enrolling the student in school, being the legal contact for the school, and making school-based medical and special education decisions;

8. The notarized and dated signatures of the caregiver, parents, legal custodians or guardians, including a sworn statement of the accuracy of the information provided and confirming that the caregiver and other signatories are aware of the penalties for falsely completing the Authorization. If after a reasonable effort the caregiver is unable to locate the parents, then as an alternative to including the parents' signatures, the Authorization shall include a statement of reasonable efforts made to locate the parents;

9. If available, any custody order in effect regarding the child. The order shall be submitted as an attachment to the Caregivers School Authorization and shall include only that portion of the order indicating to whom custody is granted.

If the documentation required to verify the information in the Caregivers School Authorization cannot be obtained by the caregiver, then the schools shall permit the child to enroll provided that a custody or guardianship petition that is date stamped to indicate that it has been filed with Family Court is provided within 10 business days of enrollment. Additional time for submission of the date stamped petition may be provided as deemed appropriate by the individual district. The petition shall permit enrollment until the end of the school year or until such time as the court enters a decision disposing of the custody or guardianship petition, whichever first occurs;

(2) A relative caregiver is an adult who by blood, marriage or adoption is the child's great grandparent, grandparent, stepgrandparent, great aunt, aunt, stepaunt, great uncle, uncle, stepuncle, stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, niece, nephew, first cousin or first cousin once removed but who does not have legal custody or legal guardianship of the student.

(3) A caregiver who completes and submits a Caregivers School Authorization form to register a child in that caregiver's care for school is authorized and agrees to act in the place of the parent or parents with respect to the child's education decisions (including but not limited to special education decisions) and the person the school contacts regarding truancy, discipline and school-based medical care. Once a Caregivers School Authorization is submitted and approved, school districts are no longer responsible, for so long as the Authorization is valid, for communicating with the parent, custodian or guardian who has signed the Authorization or is listed as unable to be found.

(4) A Caregivers School Authorization that complies with the requirements of this section shall be honored by any school in any school district. The school districts shall determine whether a particular Caregivers School Authorization complies with the requirements of this section. A caregiver may appeal the school district's decision to the local board of education of the school district. Any school district that reasonably and in good faith relies on a Caregivers School Authorization has no obligation to make any further inquiry or investigation.

(5) Persons who knowingly make false statements in the Caregivers School Authorization shall be subject to a minimum civil penalty of $1000 and maximum of the average annual per student expenditure and may be required to reimburse the school district tuition costs. Further, such persons may be subject to criminal prosecution pursuant to § 1233 of Title 11. The Justices of the Peace shall have jurisdiction in these cases.

(6) Caregivers School Authorizations filed prior to January 1 shall be honored for the balance of the current school year and for the subsequent school year. Caregivers School Authorizations filed on or after January 1 shall be honored for the balance of the current school year and for the 2 subsequent school years. In either case, the Authorization shall expire on August 1 of the applicable school year unless the caregiver receives permission from the school district to extend the length of time that the Authorization will be honored. Caregivers School Authorizations may be cancelled at anytime if the minor stops living with the relative caregiver or upon written revocation of the Authorization by the child's caregiver, parent, legal custodian or guardian.

(7) The Department of Health and Social Services shall be authorized to promulgate regulations to implement this law. This law shall take effect upon the promulgation of such regulations. Relationship and proof of actual full-time caregiving will be verified as stated in the regulations.

Del. C. § 202

14 Del. C. 1953, § 202; 56 Del. Laws, c. 292, § 4; 64 Del. Laws, c. 315, §§1, 2; 69 Del. Laws, c. 28, §1; 70 Del. Laws, c. 180, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 52, § 1; 72 Del. Laws, c. 208, §§ 1, 2; 72 Del. Laws, c. 299, §§ 1, 2; 74 Del. Laws, c. 175, § 1; 74 Del. Laws, c. 403, § 1; 75 Del. Laws, c. 125, §§ 1, 2; 76 Del. Laws, c. 136, § 13.;