The question on the table today is: “Can my child be educationally truant or educationally neglected if the child is not yet six (6) years old?”
The answer is no. If you are being accused of educational neglect because your 5 year old child has excessive absences or tardies, then we recommend you contact an attorney with significant experience in this area of the law. Not all lawyers practice these cases and they are different from custody disputes; fortunately, The Law Offices of John Schmidt & Associates PLLC possesses significant experience with “CPS Cases”.
The Cabinet for Health and Family Services employs social workers who operate largely under Kentucky Revised Statutes (KRS) 600 et seq. KRS 600.020(1)(a)8. includes in its definition of an “[a]bused or neglected child” one “whose health or welfare is harmed or threatened with harm when” a parent or guardian “[d]oes not provide the child with adequate … education … necessary for the child’s well-being.” See M.C. v. Commonwealth , 347 S.W.3d 471, 472-73 (Ky. App. 2011).
Kentucky’s education laws, specifically KRS 158.030(2), says that “[b]eginning with the 2017-2018 school year, any child who is six (6) years of age, or who may become six (6) years of age by August 1, shall attend public school[.]”
Therefore, a child cannot be educationally truant or educationally neglected if the child is not yet six (6) years old in Kentucky.
The same law gives parents of a five-year-old the discretion to decide whether the child will attend. KRS 158.030(2) makes enrollment and attendance optional because it says a child “may enter a primary school program” if the child is five years of age by August 1.
The General Assembly recognizes that there is a difference between children who are mandatorily required to attend school at age six and children who may optionally attend school at age five. While a six-year-old child may be a truant for missing school, a five-year-old cannot be a truant. KRS 159.150(1) provides: “Any student who has attained the age of six (6) years, but has not reached his or her eighteenth birthday, who has been absent from school without valid excuse for three (3) or more days, or tardy without valid excuse on three (3) or more days, is a truant.” KRS 159.150(3) further provides: “Any student who has been reported as a truant two (2) or more times is an habitual truant.”
Your child cannot be educationally truant or educationally neglected if the child is not yet six (6) years old under Kentucky Law.
Commonwealth v. H. K., 595 S.W.3d 498, 499-1 (Ky. Ct. App. 2019) held it cannot be educational neglect to fail to send a five-year-old to kindergarten every day when an identically situated five-year-old is not sent to school, nor required to be sent. See In re B.B. , 2019 VT 12, ¶ 10, 208 A.3d 244, 248-49 (Vt. 2019). This is true because it was not initially mandatory even though KRS 159.010(1)(a) requires that parents of “any child who has entered the primary school program … shall send the child to a regular public day school for the full term that the public school of the district in which the child resides is in session”.
Are you concerned about protecting your rights as a parent or are facing accusations from CPS or a school or day care? You need the help of our experienced child custody and family law team. We invite you to contact us via e-mail, schedule an appointment or call us today at (502) 509-1490 to get the answers you need and relief from associated threats and hassles.