Interpretation's Date: October 12, 2001
by superintendent David Stewart
Section: IV. Students
October 12, 2001
Ronald E. Jarmuth
Dear Mr. Jarmuth:
I received your request for a Superintendent's Interpretation dated August 21, 2001 regarding the location at which a certain child must attend school. Subsequently, I learned that there was ongoing litigation to determine the child's custodial status. Accordingly, you were informed that no interpretation would be forthcoming until the custody issue had been resolved. On September 25, 2001, you advised that the custody issue had been finally determined and that the mother of the child was found to be the child's primary custodian.
Your request contained a lengthy narrative regarding the child's school attendance and custodial status. Basically, you ask where, taking these factors into consideration, the child is legally required to attend school.
A child has a right to attend school in his or her county of residence. 51 Op. Att'y Gen. 168 (1965). The determination of residency cannot be resolved solely by reviewing the school law portions of the West Virginia Code. Generally, the legal residence of a child is the same as that of his or her parents. 51 Op. Att'y Gen. 168 (1965). However, for school attendance purposes, a child may be permitted to attend school in any county in which he or she is located, even if it is not the child's legal residence. See Grand Lodge, I.O.O.F. v. Board of Education, 90 W. Va. 8, 110 S.E. 440 (1922). Further, in this situation, there may be custodial or visitation agreements that we have not reviewed which could impact the child's residency.
If a child changes residences, it is the responsibility of the parents to enroll the
child in the designated school in the county of the new residence. This requires no
action on the part of any county board of education. The provisions of West Virginia
Code 18-5-16 are not invoked when transfers of this nature are made. Once the child
is enrolled in the new school, the child's records will be forwarded to the school upon
request from the child's parents or from the administration of the new school. Likewise,
this does not require any county board action. The transferring of a child's records to
the school in which he or she wishes to enroll is not a condition precedent to enrolling in
Finally, a child will not be considered to be truant under West Virginia Code §18-8-1 et seq. if the child is properly enrolled in any school district in West Virginia.
Hoping that I have been of service, I am