Mc Lean, VA asked in Education Law for Virginia

Q: Hello! What is considered legal custody in § 22.1-3. Persons to whom public schools shall be free?

I have legal custody of my little cousin by Provisional Mandate (from Louisiana) after the death of my aunt. I had no issues enrolling her last year at a Loudoun County school, yet this year, months after classes have started, I was contacted and told that the Provisional Mandate is not enough. Provisional mandates are 100% legal but are not signed by a judge as LA uses provisional mandates in cases where the turnover of guardianship is voluntary vice a court ordered appointment.


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1 Lawyer Answer
Jay Braddock Jackson
Jay Braddock Jackson
  • Education Law Lawyer
  • Fredericksburg, VA
  • Licensed in Virginia

A: The Provisional Mandate may not be the real issue. Article IV, Section 1 of the U.S. Constitution essentially gives effect in Virginia to judicial decisions of other states. Since the Provisional mandate is not a “judicial decision’ per se, it probably does not fall under this (“Full Faith and Credit”) clause of the Constitution. However, Section 22.1-3 of the Virginia Code gives another avenue in your situation. Here’s what the code says: “§ 22.1-3. Persons to whom public schools shall be free. A. The public schools in each school division shall be free to each person of school age who resides within the school division. Every person of school age shall be deemed to reside in a school division:….3. When the parents of such person are dead and the person is living with a person in loco parentis who actually resides within the school division.”

You may need to show your aunt’s death certificate, but if you aunt was elderly and the child is of school age, I wonder if that means that your cousin’s actual natural parents might still be living? If that is the case, you would need to obtain custody from them. If, on the other hand, your aunt was the child’s parent, then you may be able to simply show that she is in fact deceased and cite this portion of the code. You may need to show that the father is also deceased, if that is the case. If the father is not deceased, you may need to obtain legal custody in Virginia in order to enroll the child.

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