Board of Education of the Township of Barnegat, Ocean County v. Board of Education of the Freehold Regional School District, Monmouth County, 10/6/2020, (#214-20)

214-20
New Jersey Commissioner of Education
Final Decision
Board of Education of the Township of
Barnegat, Ocean County,
Petitioner,
v.
Board of Education of the Freehold Regional
High School District, Monmouth County,
Respondent.
Synopsis
The petitioner, Board of Education of the Township of Barnegat (Barnegat), sought an order directing the
respondent, Board of Education of the Freehold Regional High School District (Freehold), to share
responsibility for the cost of providing T.M. with a free public education in an out-of-district placement,
including tuition and all other related educational and residential expenses, for the period from October 16, 2018
forward, pursuant to N.J.A.C. 6A:22-3.1(a)(1)(ii)(2). Barnegat filed a motion for summary decision, which was
opposed by Freehold.
The ALJ found, inter alia, that: there are no material facts at issue in this case, and the matter is ripe for
summary decision; T.M. resides out-of-state for the majority of the year and splits his time equally between his
parents when he is in New Jersey; his parents do not have a written agreement designating the school district of
attendance; and, because T.M.’s domicile cannot be determined, the two school districts must share in the cost
of his out-of-district placement in accordance with N.J.A.C. 6A:22-3.1(a)(1)(ii)(2). The ALJ determined that
Freehold is obligated to share T.M.’s educational costs for the 2019-20 school year but denied Barnegat’s
request that Freehold share costs for the 2018-19 school year because Barnegat failed to request such cost
sharing at that time. 	Accordingly, the ALJ granted Barnegat’s motion for summary decision and ordered
Freehold to reimburse petitioner for one-half of T.M.’s educational costs beginning with the 2019-20 school
year and going forward.
Upon a comprehensive review, the Commissioner found, inter alia, that: in analyzing N.J.A.C. 6A:22-3.1, it is
not possible to determine T.M.’s residence for the 2019-20 school year, and an equitable determination of
shared responsibility for the cost of T.M.’s placement is therefore permitted under N.J.A.C. 6A:22-
3.1(a)(1)(ii)(2); 	the circumstances in this case are precisely those anticipated by the regulation; and the
exceptions raised by Freehold are without merit. Accordingly, the Initial Decision of the OAL was adopted as
the final decision in this matter. The Commissioner directed the respondent to reimburse Barnegat for one-half
of the cost of T.M.’s out-of-district placement for the 2019-20 school year, and to share equally in the future
costs of T.M.’s placement at the American School for the Deaf so long as the present circumstances remain
unchanged.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has been neither
reviewed nor approved by the Commissioner.
October 6. 2020

1
OAL Dkt. No. EDU 16397-19
Agency Dkt. No. 294-11/19
New Jersey Commissioner of Education
Final Decision
Board 	of 	Education 	of 	the 	Township 	of
Barnegat, Ocean County,
Petitioner,
v.
Board of Education of the Freehold Regional
High School District, Monmouth County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed, as have the exceptions filed by respondent Freehold Regional
High School District Board of Education (Freehold) pursuant to N.J.A.C. 1:1-18.4, and the reply
thereto submitted by petitioner Barnegat Township Board of Education (Barnegat).
In this matter, Barnegat seeks an order directing Freehold to share responsibility
for the cost of T.M.’s education at an out-of-district residential placement. 	By way of
background, T.M. is a 16-year-old who has been enrolled in the Barnegat School District since
April 24, 2017, but has resided year-round at the American School for the Deaf since
September 1, 2018.1 	T.M.’s parents are divorced and share custody. 	H.L. is the designated
1 Pursuant to an August 24, 2018 settlement agreement between Barnegat and the parents following a
petition for due process, Barnegat agreed to be responsible for the cost of T.M.’s placement.

2
parent of primary residence and lives in Barnegat, while P.M. is the parent of alternate residence2
and lives in Marlboro Township.3 	The parents split time with T.M. equally during school
recesses and holidays. On September 6, 2019, Barnegat requested that Freehold share the cost of
T.M.’s out-of-district placement, but Freehold refused.
The Administrative Law Judge (ALJ) found that Freehold is obligated to share in
T.M.’s educational costs beginning in the 2019-20 school year.4 T.M. resides out-of-state for the
majority of the year and splits his time equally between his parents when he is in New Jersey;
his parents do not have a written agreement designating the school district of attendance. 	As
such, the ALJ found that, because T.M.’s domicile cannot be determined, the districts must share
in the cost of his out-of-district placement in accordance with N.J.A.C. 6A:22-3.1(a)(1)(ii).
In its exceptions, Freehold argues that the ALJ incorrectly determined that T.M.’s
domicile could not be determined under N.J.A.C. 6A:22-3.1. 	Freehold maintains that T.M. is
domiciled with his mother in Barnegat, as she was designated as the parent of primary residence
in the Final Judgment of Divorce, and the residence of a child of divorced parents follows the
parent of primary residence. 	Freehold contends that the ALJ erred in finding that the parents
share equal physical custody because, pursuant to the custody arrangement, T.M. resides with
H.L. for approximately two-thirds of the year. Additionally, Freehold points out that in the due
process petition filed by the parents against Barnegat, the parents indicated that Barnegat was the
district of residence, and in a settlement agreement of that matter, Barnegat agreed to be
2 The terms “designated parent of primary residence” and “parent of alternate residence” were used in the
Final Judgment of Divorce and Property Settlement Agreement between H.L. and P.M
3 The Freehold Regional High School District serves students from Marlboro Township.
4 Barnegat also sought that Freehold share costs for the 2018-19 school year. The ALJ denied that request
as Barnegat made no demand for cost sharing at that time. 	The Commissioner agrees and therefore
makes no determination as to where T.M. was domiciled for the 2018-19 school year pursuant to
N.J.A.C. 6A:22-3.1.

3
financially responsible for the out-of-district placement. 	As such, Freehold argues that under
N.J.A.C. 6A:22-3.1, T.M.’s domicile can be determined as Barnegat, and therefore, the ALJ
erred in finding that tuition should be shared.
Freehold also takes exception to the Initial Decision’s position that an out-of-
district placement can eliminate the domicile of a child of divorced parents. 	According to
Freehold, the Department has consistently found that dual domiciles for school district purposes
should only occur in very narrow circumstances, which are not found here. 	As such, Freehold
maintains that although T.M. spends time equally with both parents during school recesses, his
domicile did not change; he remains domiciled in Barnegat.
Alternatively, Freehold argues that Barnegat was out of time in filing the instant
petition because it was filed more than 90 days after the August 2018 settlement agreement that
placed T.M. in the out-of-state placement. 	Additionally, Freehold argues that Barnegat is
estopped from seeking payment from Freehold because it failed to involve Freehold in the
underlying due process matter with the parents, which ended with Barnegat agreeing to be solely
responsible for the cost of T.M.’s placement. Accordingly, Freehold urges the Commissioner to
reject the Initial Decision and find that T.M. is domiciled in Barnegat, and – in the alternative –
that Barnegat is barred from seeking payment from Freehold.
In reply, Barnegat argues that the ALJ correctly determined that T.M.’s domicile
could not be determined by N.J.A.C. 6A:22-3.1(a). 	Barnegat maintains T.M. resides at his out-
of-state placement and visits his parents equally when in New Jersey; therefore, he lived with
neither parent. Furthermore, Barnegat contends that the ALJ appropriately found that there is no
court 	order 	or 	written 	agreement 	between 	the parties 	designating the school 	district 	of
attendance, and that a designation of legal custody does not suffice. 	As such, Barnegat agrees

4
with the ALJ that N.J.A.C. 6A:22-3.1(a)(1)(ii)(2) permits an equitable determination of shared
responsibility in these circumstances.
With respect to the settlement, Barnegat argues that Freehold was not a party and
did not need to be involved; the settlement resolved disputes between Barnegat and the parents at
that time. 	Barnegat further notes that the settlement agreement only provided for T.M.’s
placement for the 2018-19 school year, and the ALJ concluded that Freehold was not responsible
for cost sharing during that school year. Accordingly, Barnegat urges the Commissioner to adopt
the Initial Decision.
Upon review, the Commissioner concurs with the ALJ that the circumstances of
this matter support an equitable determination of shared responsibility for the cost of T.M.’s out-
of-district placement. N.J.A.C. 6A:22-3.1(a)(1) provides:
(a) A student is eligible to attend a school district if he or she is
domiciled within the school district.
1. 	A student is domiciled in the school district when he or she
is the child of a parent or guardian whose domicile is
located within the school district.
i. 	When a student's parents or guardians are domiciled
within different school districts and there is no court
order or written agreement between the parents
designating the school district of attendance, the
student's domicile is the school district of the parent
or guardian with whom the student lives for the
majority of the school year. This subparagraph shall
apply regardless of which parent has legal custody.
ii. 	When a student's physical custody is shared on an
equal-time, alternating week/month or other similar
basis so the student is not living with one parent or
guardian for a majority of the school year and there
is no court order or written agreement between the
parents designating the school district of attendance,
the student's domicile is the present domicile of the
parent or guardian with whom the student resided

5
on the last school day prior to the October 16
preceding the application date.
(1) When a student resided with both parents
or guardians, or with neither parent or
guardian, on the last school day prior to
the preceding October 16, the student's
domicile is that of the parent or guardian
with 	whom 	the 	parents 	or 	guardians
indicate the student will be residing on the
last 	school 	day 	prior 	to 	the 	ensuing
October 16. When the parents or guardians
do not designate or cannot agree upon the
student's likely residence as of that date, or
if on that date the student is not residing
with 	the parent 	or 	guardian 	previously
indicated, the student shall attend school in
the school district of domicile of the parent
or 	guardian 	with 	whom 	the 	student
actually lives as of the last school day
prior to October 16.
(2) When 	the 	domicile 	of 	a 	student 	with
disabilities as defined in N.J.A.C. 6A:14,
Special Education, cannot be determined
pursuant to this section, nothing in this
section 	shall 	preclude 	an 	equitable
determination of shared responsibility for
the 	cost 	of 	the 	student's 	out-of-district
placement.
As 	explained 	in 	the Initial 	Decision, 	the regulation 	confirms 	the 	“general
proposition that a child’s domicile follows that of his parents; it goes on to countenance a variety
of factual complications, and resolves each with a formula for determining a single domicile.”
Board of Education of the Borough of Lodi, Bergen County v. Board of Education of the
Township of Rochelle Park, Bergen County, EDU 20236-15, Initial Decision (June 10, 2016),
adopted, Commissioner’s Decision No. 267-16, decided July 21, 2016. 	“Where a special
education student is placed out-of-district; his parents reside in different districts; and the

6
regulatory formulas offer no clarity; then, and only then, is a dual domicile assigned for the
child.” Ibid.
In analyzing N.J.A.C. 6A:22-3.1, the Commissioner is unable to determine T.M.’s
residence for the 2019-20 school year, and therefore an equitable determination of shared
responsibility for the cost of the placement is permitted. 	First, T.M.’s parents are domiciled in
different school districts and there is no “court order or written agreement between the parties
designating the school district of attendance.” The regulation’s requirement for a court order or
written agreement is explicit. 	G.P. and I.R.-P., on behalf of minor child, A.P. v. Board of
Education of the Township of Hamilton, Mercer County, EDU 02621-16, Initial Decision
(October 28, 2016), adopted, Commissioner Decision No. 422-16, decided December 15, 2016.
Additionally, “when there is a consent order or a written agreement between the parents that
designates the school district of attendance, the amount of time spent with either parent does not
dictate where the children must attend school.” K.H., on behalf of minor children, A.H. and V.H.
v. Board of Education of the Borough of Butler, Morris County, Commissioner’s Decision No.
70-17, decided March 2, 2017. 	Although Freehold argues that the custody arrangement in the
Final Judgment of Divorce designating the mother as the parent of primary residence qualifies as
an agreement determining that Barnegat is the school district of attendance, the regulation’s
requirement is explicit. 	A parenting time arrangement as part of a divorce decree is not
equivalent to a designation of the school district of attendance. 	Moreover, at the time of the
divorce, neither parent resided in Barnegat, so a written agreement determining Barnegat as the
school district of attendance could not have been contemplated at the time the parents executed
the Final Judgment of Divorce, and the record is devoid of any other agreement between the
parents designating a district of attendance.

7
Next, T.M. resides with neither parent for the majority of the school year as he is
in an out-of-state housing placement year-round. 	According to Freehold, T.M.’s residence
remains with his mother because the Final Judgment of Divorce designated her the parent of
primary residence. While T.M. previously spent more time with his mother in accordance with
the established parenting time schedule, his circumstances have changed. He now lives full-time
at an out-of-district placement, and – according to the Final Judgment of Divorce – the parties
“equally share all recesses from school and utilize the Court Holiday Schedule unless they can
agree otherwise.” 	There is no evidence in the record that the parties have changed that
arrangement, so T.M. splits his time equally between his parents when on recesses from his
residential placement and lives with neither parent for the majority of the school year.
As T.M.’s residence cannot be determined in the above analysis, the next step is
to determine where T.M. resided on the last school day prior to the October 16 preceding the
application date or, otherwise, where he will reside on the last school day prior to the ensuing
October 16. 	T.M. resided at his out-of-state placement on October 15 in 2018, 2019 and is
expected to be residing there again in 2020.
Since T.M.’s residence cannot be determined under any of the above steps, an
equitable 	determination 	of 	shared 	responsibility 	is 	permitted 	under 	N.J.A.C. 	6A:22-
3.2(a)(1)(ii)(2). 	The circumstances here are precisely those anticipated by the regulation. 	A
student with disabilities resides at an out-of-district placement and the domicile of the student
cannot be determined because the parents live in different districts. 	Accordingly, an equitable
determination may be made for the districts to share the responsibility for the cost of the out-of-
district placement.

8
The Commissioner is not persuaded by Freehold’s additional exceptions. 	This
matter is not out of time; it was filed within 90 days of Freehold’s refusal of Barnegat’s request
for cost sharing for the 2019-20 school year. Accordingly, this matter was timely filed pursuant
to N.J.A.C. 6A:3-1.3(i). Additionally, Barnegat is not estopped from seeking to share costs with
Freehold. 	The due process petition that resulted in T.M.’s out-of-district placement did not
involve Freehold because, at the time, T.M. resided in Barnegat. 	As explained, T.M.’s
circumstances have changed such that his domicile is no longer determinable. 	Therefore,
Barnegat is not estopped from seeking financial assistance from Freehold for the cost of T.M.’s
placement beginning in the 2019-20 school year.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter. Freehold is directed to reimburse Barnegat for one-half of the cost of T.M.’s out-of-
district placement for the 2019-20 school year and to share equally in the future costs of T.M.’s
placement at the American School for the Deaf, so long as the present circumstances remain the
same.
IT IS SO ORDERED.5
INTERIM COMMISSIONER OF EDUCATION
Date of Decision: October 6, 2020
Date of Mailing: October 6, 2020
5 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008,
c. 36 (N.J.S.A 18A:6-9.1).

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
BOARD OF EDUCATION OF THE 	OAL DKT. NO. EDU 16397-19
TOWNSHIP OF BARNEGAT, OCEAN COUNTY, 	AGENCY DKT. NO. 294-11/19’
Petitioner,
v.
BOARD OF EDUCATION OF THE
FREEHOLD REGIONAL HIGH SCHOOL
DISTRICT, MONMOUTH COUNTY,
Respondent.
_________________________________________
Jessika Kleen, Esq. for petitioner (Machado Law Group, attorneys)
Mark G. Toscano, Esq., and Alexandra A. Stulpin, Esq., for respondent (Comegno Law
Group, PC, attorneys)
Record Closed: July 8, 2020 	Decided: July 20, 2020
BEFORE TRICIA M. CALIGUIRE, ALJ:
STATEMENT OF THE CASE
Petitioner Board of Education of the Township of Barnegat, Ocean County (Barnegat),
brings an action against Respondent Board of Education of the Freehold Regional High School
District, Monmouth County (Freehold), seeking an order directing Freehold to assume shared
responsibility for providing minor child T.M. with a free appropriate public education (FAPE) in an
out-of-district placement, including tuition and all other related educational and residential

OAL DKT. NO. EDU 16397-19
2
expenses, from October 16, 2018 or the date on which T.M.’s father resided in the Freehold
District, whichever is earlier, pursuant to N.J.A.C. 6A:22-3.1(a)(1)(ii)(2).
PROCEDURAL HISTORY
On November 8, 2019, Barnegat filed a petition with the Department of Education
(DOE), Office of Controversies and Disputes. 	On November 14, 2019, Freehold filed its
answer to the petition. The matter was transmitted by the DOE to the Office of Administrative
Law (OAL), where it was filed on November 21, 2019, for hearing as a contested case
pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13.
An initial prehearing conference scheduled for January 30, 2020, was adjourned at
the request of petitioner, and rescheduled for February 4, 2020. 	A prehearing order was
issued on February 18, 2020, setting deadlines for the completion of discovery and the
filing of dispositve motions. On March 4, 2020, a consent order was entered to permit the
production of relevant, confidential student records in response to discovery requests.
On May 26, 2020, Barnegat filed a motion for summary decision in its favor. On June 29,
2020, Freehold filed a response in opposition to Barnegat’s motion. Barnegat 	replied on
July 8, 2020, and the matter is now ripe for decision.
FACTUAL DISCUSSION AND FINDINGS
Based on the documentary evidence filed in this matter, including the certifications of
counsel and P.M., father of minor child T.M., I FIND the following as FACTS:
1. 	Barnegat is a local public school district in Ocean County, New Jersey, responsible
to provide a FAPE, pursuant to 20 U.S.C.A. 1400(d)(1)(A), to students within
Barnegat Township.

OAL DKT. NO. EDU 16397-19
3
2. 	Freehold is a public regional school district in Monmouth County, New Jersey,
responsible for providing FAPE to students in ninth through twelfth grades from
eight localities, including Marlboro Township.
3. 	T.M. is a sixteen year old male who is eligible for special education and
related services under the classification multiply disabled. T.M.’s disabilities
include bilateral severe to profound hearing loss. 	He is enrolled in the
Barnegat School District and resides at the American School for the Deaf
(ASD), an out-of-district residential placement.6 Certification of Jessika Kleen,
Esq., in Support of Petitioner’s Motion for Summary Decision (May 26,
2020), Exhibit A (June 24, 2019 Individual Education Program for T.M.).
4. 	For the 2018-2019 school year and the 2019-2020 school year, Barnegat placed
T.M. at ASD and paid all educational and residential costs of T.M.’s placement
pursuant to a settlement agreement entered on October 2, 2018, by T.M.’s parents
and Barnegat. Kleen Cert., Ex. B.
5. 	T.M.’s parents, P.M. and H.L. (formerly H.M.), divorced in 2007. They share joint
legal and physical custody of T.M.; H.L. is the “designated parent of primary
residence” and P.M. is the “parent of alternate residence.” 	Kleen Cert., Ex. C
[Final Judgement of Divorce, Ocean County Sup. Ct. Docket No. FM-15-883-07N
(December 21, 2007), at 6].
6. 	At all relevant times, P.M. has resided in Marlboro Township. 	Certification of
P.M. (May 6, 2020), ¶¶ 2, 3.
7. 	At all relevant times, H.L. has resided in Barnegat Township. Br. of Petitioner in
Support of Motion for Summary Decision (May 26, 2020), ¶ 12.
6 While Freehold makes much of the Judgement of Divorce designation of H.L. with primary custody of T.M.,
the exhibits attached to counsel’s certification make clear that since September 1, 2018, T.M. has lived at
ASD year-round. See, Certification of Alexandra A. Stulpin in Support of Respondent’s Opposition to Motion
for Summary Decision (June 29, 2020), Exs. F, G and H.

OAL DKT. NO. EDU 16397-19
4
8. 	On April 24, 2017, H.L. registered T.M. in the Barnegat School District. 	Br.
of Respondent in Opposition to Motion for Summary Decision (June 29,
2020), at 15.
9. 	Since the 2018-2019 school year, T.M. has lived at ASD year-round and does not
reside with either parent. P.M. Cert., ¶¶ 8-9. As provided in the Final Judgement
of Divorce, P.M. and H.L. equally share time with T.M. while he is on recess from
school. Kleen Cert, Ex. C, at 6; P.M. Cert., ¶ 9.
10. 	There is no court order or written agreement between P.M. and H.L.. designating
T.M.’s school district of attendance. P.M. Cert, ¶ 11.
11. 	T.M. resided at ASD and not with either parent on the last school day prior to
October 16, 2019. P.M. Cert., ¶ 12.
12. 	According to his father, T.M. will reside at ASD and not with either parent on the
last school day prior to October 16, 2020.7 Id., ¶ 13.
13. 	On September 6, 2019, through counsel, Barnegat proposed that the cost of
T.M.’s placement be shared by the two districts. Freehold refused, citing the
custody arrangement in the Final Judgement of Divorce, and this petition of
appeal followed.
LEGAL ANALYSIS AND CONCLUSIONS
It is well-established that if there is no genuine issue as to any material fact, a
moving party is entitled to prevail as a matter of law. 	Brill v. The Guardian Life Insurance
Co. of America, 142 N.J. 520, 540 (1995). 	The purpose of summary decision is to avoid
unnecessary hearings and their concomitant burden on public resources. 	Under the Brill
7 Neither party produced any evidence that T.M. will not be in residence at ASD on October 15, 2020.

OAL DKT. NO. EDU 16397-19
5
standard, a fact-finding hearing should be avoided “when the evidence is so one-sided that
one party must prevail as a matter of law.” Brill guides us thusly:
[A] determination whether there exists a ‘genuine issue’ of material
fact that precludes summary judgment requires the motion judge to
consider whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational factfinder to resolve the alleged
disputed issue in favor of the non-moving party.
[Id. at 540.]
I CONCLUDE that the parties raise no dispute with respect to material facts and the
obligations of Barnegat and Freehold to share in the costs of T.M.’s out-of-district placement
can be decided as a matter of law.
New Jersey public schools are required to provide FAPE to children between the
ages of five and twenty who are domiciled within the school district. 	N.J.S.A. 18A:38-1.
Typically, a child’s domicile follows that of his or her parent(s). 	N.J.A.C. 6A:22-3.1(a)(1).
The resolution of this dispute will turn on a legal question, specifically how New Jersey
regulations define the domicile of a child of divorced parents who reside in different school
districts. In this regard, N.J.A.C. 6A:22-3.1(a)(1)(i) provides:
(a) 	A student is eligible to attend a school district if he or she is
domiciled within the school district.
1. 	A student is domiciled in the school district when he or she
is the child of a parent or guardian whose domicile is
located within the school district.
i. 	When a student's parents or guardians are domiciled
within different school districts and there is no court
order 	or 	written 	agreement 	between 	the 	parents
designating 	the 	school 	district 	of 	attendance, 	the
student's domicile is the school district of the parent or
guardian with whom the student lives for the majority
of the school year. This subparagraph shall apply
regardless of which parent has legal custody.

OAL DKT. NO. EDU 16397-19
6
ii. 	When a student's physical custody is shared on an
equal-time, alternating week/month or other similar
basis so the student is not living with one parent or
guardian for a majority of the school year and there is
no court order or written agreement between the
parents designating the school district of attendance,
the student's domicile is the present domicile of the
parent or guardian with whom the student resided on
the last school day prior to the October 16 preceding
the application date.
(2) 	When a student resided with both parents or
guardians, or with neither parent or guardian, on the
last school day prior to the preceding October 16,
the student's domicile is that of the parent or
guardian with whom the parents or guardians
indicate the student will be residing on the last
school day prior to the ensuing October 16. When
the parents or guardians do not designate or
cannot agree upon the student's likely residence as
of that date, or if on that date the student is not
residing with the parent or guardian previously
indicated, the student shall attend school in the
school district of domicile of the parent or guardian
with whom the student actually lives as of the last
school day prior to October 16.
(3) 	When the domicile of a student with disabilities as
defined 	in 	N.J.A.C. 	6A:14, 	Special 	Education,
cannot be determined pursuant to this section,
nothing in this section shall preclude an equitable
determination of shared responsibility for the cost
of the student's out-of-district placement.
The above regulation first confirms “the general proposition that a child’s domicile follows
that of his parents; it goes on to countenance a variety of factual complications, and resolves
each with a formula for determining a single domicile.” Bd. of Educ. of the Borough of Lodi v. Bd.
of Educ. of the Tsp of Rochelle Park, OAL Dkt. No. EDU 20236-15 (June 10, 2016),
http://njlaw.rutgers.edu/collections/oal/html/initial/edu20236-15_1.html., 	adopted, 	Comm’r
(July 26, 2016), http://njlaw.rutgers.edu/collections/oal/final/edu20236-15_1.pdf. T.M.’s parents
are domiciled in different districts and, given that he lives at ASD year-round and did not stay
with either parent on October 15, 2019, and is expected to be at ASD on October 15, 2020, the
only question left is whether there is a “court order or written agreement between the parents
designating the school district of attendance[.]” N.J.A.C. 6A: 22-3.1(a)(1)(ii).

OAL DKT. NO. EDU 16397-19
7
Freehold argues that the 2007 Final Judgement of Divorce dictates custody of T.M.
and, since H.L. is designated with primary custody, this document serves as “a written
agreement under N.J.A.C. 6A:22-3.1(a)(1)(i), that show [sic] their united intent to confer
T.M.’s domicile with his mother in Barnegat.” Br. of Respondent in Opposition to Motion for
Summary Decision (June 29, 2020), at 14.8 	But, the regulations make clear that the
designation of legal custody does not suffice for a specific court order or written agreement
between the parents designating the school district of attendance for T.M. 	See, G.P. and
I.R.-P. on behalf of A.P. v. Bd. of Educ. of the Tsp. of Hamilton, OAL Dkt. No. EDU 02621-16
(October 28, 2016) (“[R]egulation explicitly calls for a court order or a written agreement,”
and in the absence of such documents, the domicile of the minor child “on any given day is
to 	be 	determined 	in 	accordance 	with 	the 	provisions 	of 	N.J.A.C. 	6A:22-3.1(a)1ii[.]”),
http://njlaw.rutgers.edu/collections/oal/html/initial/edu02621-16_1.html, adopted, Comm’r
(December 15, 2016), http://njlaw.rutgers.edu/collections/oal/final/edu02621-16.pdf.
When, as here, a special education student is placed out-of-district, his parents reside in
different districts, and the above regulatory formulas offer no clarity, then, and only then, is a
dual domicile assigned for the child. Lodi v. Rochelle Park (cited above). Respondent claims
that Barnegat relies too heavily on the finding of dual domicile in Somerville Bd. of Educ. v.
Manville Bd. of Educ., 332 N.J. Super 6 (App. Div. 2000), as that case was decided before the
current regulations were promulgated and the decision is rarely cited. The dearth of citations
may only be because the circumstances supporting use of dual domicile are so rare. In Lodi v.
Rochelle Park, ALJ Ellen Bass explained that the current regulations are in fact consistent with
both Somerville and the later decision in Cumberland Regional H.S. District Board of Education
v Freehold Regional H.S. District Board of Education, 293 Fed. Appx. 900 (3d Cir. 2008):
8 Freehold cites an email exchange with P.M. confirming that the Judgment of Divorce remains unchanged.
Stulpin Cert. (June 29, 2020), ¶ 33. That is not enough, however, to turn the Judgment into “a court order or
written agreement designating the school district of attendance.” Further, it raises the question of whether
had the parents so designated a district in 2007, it would have been Barnegat, as H.L. lived in Jackson, New
Jersey, at the time of the divorce. See, Kleen Cert, Ex. C at 2.

OAL DKT. NO. EDU 16397-19
8
[In Cumberland,] the special needs child of divorced parents was
placed in a residential facility out-of-state. Freehold Regional, the
district where the father lived, contended that the home district of
the child’s mother should share in the cost of the placement. The
court agreed, relying on the Somerville decision to direct that the
districts share the cost of the placement. 	Cumberland predates
the regulations that now guide thorny domicile determinations but
offers a scenario that would result in a dual domicile determination
even today. The special education student in Cumberland resided
out-of-state and thus in neither parents’ home; as a result, her
domicile could not ‘be determined pursuant to [the regulation].’
The undisputed facts are that T.M. resides out-of-state for the majority of the year and
when he is in New Jersey, he divides his time equally at the separate residences of his parents.
At the time of their divorce, P.M. and H.L. did not enter into a written agreement designating the
school district of attendance for T.M. as Barnegat and why would they have, given that H.L. did
not move to Barnegat until approximately ten years later. 	Neither party has provided any
evidence that such a document was executed at any time after the divorce. I CONCLUDE that
T.M.’s domicile cannot be determined and therefore, pursuant to N.J.A.C. 6A: 22-3.1(a)(1)(ii),
Barnegat and Freehold, the districts of domicile of T.M.’s parents, must share in the cost of
T.M.’s out-of-district placement.
Barnegat’s request for relief included one-half of all costs incurred by Barnegat related
to T.M.’s out-of-district placement beginning October 16, 2018. Barnegat made no demand for
payment at that time and Freehold should not be responsible to cover costs for which it could
not anticipate nor budget. I CONCLUDE that Freehold’s obligation to share costs began with
the 2019-2020 school year, coincident with the September 2019 demand from Barnegat. See
I.G. obo L.G. v. Cumberland Regional High School District Bd. of Educ., OAL Dkt. Nos. EDS
2994-02 and EDS 6938-02 (July 27, 2005) (district’s shared responsibility for education costs
began with notice of litigation).
ORDER
For the foregoing reasons, I ORDER that the motion of Petitioner Board of Education of
the Township of Barnegat for summary decision in its favor is GRANTED and Respondent Board

OAL DKT. NO. EDU 16397-19
9
of Education of the Freehold Regional High School District is ORDERED to reimburse petitioner
for one-half of the costs of T.M.’s placement at the American School for the Deaf for the 2019-
2020 school year, and to share equally in all future costs continuing until such time as T.M. is no
longer enrolled at ASD or P.M. no longer resides in Freehold, whichever is earlier.
I hereby FILE this initial decision with the COMMISSIONER OF THE DEPARTMENT
OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized to
make a final decision in this matter. If the Commissioner of the Department of Education does
not adopt, modify or reject this decision within forty-five days and unless such time limit is
otherwise extended, this recommended decision shall become a final decision in accordance
with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was mailed
to the parties, any party may file written exceptions with the COMMISSIONER OF THE
DEPARTMENT 	OF 	EDUCATION, ATTN: 	BUREAU 	OF 	CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the judge
and to the other parties.
July 20, 2020
DATE 	TRICIA M. CALIGUIRE, ALJ
Date Received at Agency:
Date Mailed to Parties:
TMC/nd