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2 N.J.A.R. 283

R., V. on behalf of R., A. v. Hamburg, Sussex County, Board of Education of the Borough of
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Citation: 2 N.J.A.R. 283
Decision Date: 1980
Synopsis: The petitioner, a New York resident, alleged that the board of education had improperly denied admission and placement of his handicapped daughter as a student in the school district where she had lived continuously since 1975. The board contended that both the petitioner and his daughter were New York domiciliaries and thus not entitled to a free education provided by the Hamburg school district. The petitioner made a motion for interim relief seeking, among other things, enrollment of his daughter in the district's public schools and an evaluation of her by the child-study team to classify her handicap. After oral argument on the motion, the administrative law judge ruled pursuant to N.J.A.C. 1:1-9.7(e) that there were no issues of material fact and that he would consider the matter as if both parties had made cross-motions for summary decision under N.J.A. C. 1:1 - 13.1 et seq. seeking a determination of whether petitioner's daughter was entitled to a free education under N.J.S.A. 18A:331. The petitioner argued that his daughter should be considered domiciled in the Hamburg school district and thus entitled to a free education under N.J.S.A. 18A:38(a). In discussing the child's domicile, the administrative law judge observed that ample case law supports the principle that an unemancipated infant cannot acquire a domicle other than his father's which he obtains at birth. The judge reasoned that this principle was based upon the rationale that an unemancipated person receives his support and maintenance from his parents, regardless of the child's physical location. The judge found petitioner's argument that 'changing times' had undermined this principle to be unconvincing, and found that petitioner's daughter must share her parents' domicile regardless of her physical location until emancipation. Accordingly, the judge concluded that V.R. On Behalf of A.R.v. Bd. of Ed. Boro. of Hamburg petitioner's daughter was not entitled to a free education under N.J.S.A. 18A:38-1(a) since New Jersey requires a local domicile and petitioner's daughter was domiciled in New York. Nor did the judge find that petitioner's daughter was entitled to a free education under N.J.S.A. 18A:38-1 (c) which states that a person who has an all-year dwelling place within the district for one year or longer should be deemed to be domJelled within the district. While noting that the statute had not previously been construed by the courts, after a review of the statute's history the judge concluded that the consistent construction of the statute would require that a child have a parent or guardian temporarily residing in New Jersey and that the residence of the child alone was not enough. Since this was previously found not to be the case, the petitioner's daughter was found to be ineligible for a free education in New Jersey under N.J.S.A. 18A:38- l(c). Accordingly, petitioner's motion for summary decision was denied and summary decision was granted in favor of the board. Nancy L. Heath, Esq., for Petitioner Joseph M. Hoffman, Esq., for Respondent
Rule(s) Cited: 1:1-9.7(c) 1:1-13.1 6:28-1.6