PA Supreme Court Reviews School Transportation in Custody Cases

Just before the start of this school year the Pennsylvania Supreme Court offered a back-to-school special of its own in Watts v. Manheim Township School District, (Pa. Supreme; Docket No. 112 MAP 2014). That opinion, decided Aug. 26, offers some direction for both family law and school law practitioners on the issue of busing students to and from school in shared physical custody situations.

In Watts, the mother and father were divorced and lived in separate residences in the same school district. They are the parents of a seventh-grade student at the district’s only middle school. The parents have a week on, week off—shared physical custody arrangement. Both parents wanted their child to be transported to and from school by the school bus each day.

Before 2010 the district provided transportation for students to multiple locations both before and after school, however, beginning in the 2010-2011 school year, as a cost-cutting measure, the district instituted a new policy saying that each student would be transported to and from only one location. For the first two school years this policy was not strictly enforced, however, in the summer of 2012 the father was notified the district would no longer provide transportation for his son to and from his residence, only the mother’s. If the father wanted to utilize school transportation he needed to get his child to and from the mother’s residence at the appropriate time at his own expense. Watts sued in the Lancaster County Common Pleas Court to compel the school district to provide bus transportation for his son to both residences. The school district, supported by the Pennsylvania School Board Association, took the position that under the school code a student can only have one residence and in this instance it is the mother’s.

The trial court found for the father and that decision was affirmed by Commonwealth Court. Those two decisions were based on the concept that since the child resided with both parents equally, the child has two residence and, therefore, the district is required to provide transportation to both residences pursuant to Section 1361(1) of the school code. Under a prior decision of the Commonwealth Court, Wyland v. West Shore School District, 52 A.3d 572 (Pa. Commonwealth 2012), it is possible for a child to have two residences.

In affirming the Commonwealth Court in Watts, the Supreme Court analyzes the Wyland decision relative to what a “resident pupil” is when that child lives equally in two households in the same district. This is a finding that makes simple and logical sense; both parents are paying taxes to the district, the district is already running buses to both parents’ neighborhoods, so the district is only minimally inconvenienced by providing transportation to both households. Bottom line, the Supreme Court concludes that when a school district elects to provide transportation pursuant to Section 1361(1) of the School Code, the origination and termination point for transportation is the student’s residence, no matter whether the student has one or two residences in the district.

The holding in Watts, however, is limited to a student in an equal shared physical custody arrangement with both parents in the same district. As any family law or school law practitioner knows, there are any number of other types of physical arrangements with separated parents. A few other Pennsylvania appellate decisions have addressed some of these other possibilities.

As is noted above, the Watts decision is based in large part on Wyland v. West Shore School District, 52 A.3d 572 (Pa. Commonwealth 2012). In Wyland, the divorced parents initially lived in the same school district. Their children attended private school in that district. Eventually the mother moved to the adjoining school district while the father remained in the school district where the private school was located. The parents had a 50-50 custody schedule that broke down to a three/two/two weekly arrangement. When the mother moved to the adjoining school district she requested that her home school district provide transportation to and from her home and the private school on her custody days. The district agreed in that Section 1361(1) does not differentiate between public and private school students. It is accepted practice that a private school student can receive transportation across school district boundaries.

Mr. Wyland made the same request of his district, the district that had provided transportation to both households in the past when both parents lived in that district, which was also the district where the school is located. His request appears logical based on the facts and both parents’ history with the district. However, his district refused to transport the children from his residence and forced him to sue in the Cumberland County Court of Common Pleas. The court held for Mr. Wyland as did the Commonwealth Court on appeal. The district, joined by the Pennsylvania School Board Association, argued that the children were “enrolled” in the mother’s school district and, therefore, resident pupils of that district and a student can only have one resident district. The Commonwealth Court found that in a situation where a child lives equally in two districts, the child is a “resident pupil” of both districts. It is this logic that forms the basis of the Supreme Court’s opinion in Watts.

Interestingly, in North Allegheny School District v. Gregory P., 687 A.2d 37 (Pa. Commonwealth 1999); a situation similar to Wyland came out differently. In that case a special needs child lived equal time with both parents, the parents living in two separate districts. The student attended public school in one parent’s home district and received transportation to and from the mother’s residence. The father, the parent in the adjoining district, asked the same district to provide transportation to and from his residence as well. The Commonwealth Court ultimately denied the father’s request.

What does all of this mean for the practitioner? Obviously, if separated parents live in two districts they have to select one district as their child’s resident district and the child would go to school in that district, As in Mathias v. Richland School District, 592 A.2d 811 (Pa. Commonwealth 1991). It also appears that being a taxpayer in a district carries weight. Noteworthy, all of these decisions involve 50-50 shared custody arrangements, that being an arrangement that is growing in popularity with separated parents, as well as courts across the state.

Another key point specific to Wyland, the private school case, is that the first parent requesting transportation lived outside of the district where the school was located. That request was granted essentially backing the second district into following suit. Would Wyland have turned out differently if the requests were made the other way around? The assumption seems to be no, given the private school component of the case.

In closing, where does this series of cases lead? The last several years have seen the growth of charter schools, and charter schools are technically public schools. Many of these schools serve students from multiple school districts. Are separated parents living in two districts, but sending their child to a charter school entitled to transportation from both districts? In a 50-50 custody situation the presumed answer is, “yes.” What about in a less than 50-50 arrangement? The presumptive answer would seem to be, “no.” But an argument can be made based on the cases above and the School Code, that transportation should be provided by both districts. That argument, however, is left for the future. •

Special to the Law Weekly Lawrence “Skip” Persick is a partner at Lamb McErlane PC in West Chester and is credited for his ability to resolve complex family law issues. Persick is a former assistant public defender for Chester County and is a member of the Pennsylvania Bar Association’s Family Law Section Family Court Rules Committee and Council.  Skip can be reached at 610-430-8000.

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