Hon. Michael L. Henry
28th Judicial Circuit
P. O. Box 682
Somerset, KY 42502
Dear Judge Henry:
You have requested an opinion from our office regarding an interpretation of the truancy
Your first question asks:
Can OAG No. 81-73, holding that a married minor under the age of
16 may not be required to attend school, and OAG No. 87-40
holding to the contrary, be harmonized for purposes of
enforcement of the Habitual Truant Laws?
You are correct that our opinions in OAG 81-79 and OAG 87-40 are in conflict. In OAG
81-79 we held that married students under sixteen years old are not required to attend school.
Subsequently, in OAG 87-40 we reached an opposite conclusion and held that married students
under sixteen are required to attend school. In OAG 87-40 we did not cite the earlier opinion in
OAG 81-79 and thus there may be some confusion regarding the current status of the law. We
believe that OAG 87-40 reversed our earlier opinion in OAG 81-79 and therefore married
children under sixteen year sold must attend school. Accordingly, OAG 87-40 should be
followed regarding this issue and OAG 81-79 should be disregarded.
In your second question you ask:
For purposes of enforcement of the Habitual Truant Laws found in
KRS 159.150 and KRS 600.020, is a married female under 16
years of age "a child" as defined in KRS 600.020?
The Unified Juvenile Code defines "child" as:
"Child" means any person who has not reached his eighteenth
birthday unless otherwise provided.
We believe that according to the common and ordinary usage of the definition set forth in
KRS 600.020(5), any married or unmarried person under 18 years old is a "child" for purposes of
enforcing the truancy laws found in the Unified Juvenile Code. KRS 446.080(4).
We addressed a similar issue in OAG 87-40 and held that a married child under the age of
18 is subject to the compulsory attendance laws. We explained in that opinion that a child does
not lose the disability of infancy as a result of marriage. In OAG 87-40 we reasoned that since
marriage did not remove the legal protection afforded children from their own mistakes, then
marriage should not justify allowing a child to forego a basic education. "Education was once a
privilege, but in today's competitive labor force it is a necessity." OAG 87-40.
In answer to your question, we believe that for purposes of enforcement of the Habitual
Truant Laws in KRS 159.150 and KRS 600.020, a married female under 16 years of age is a
"child" as defined in KRS 600.020.
Your final question inquires:
After having reviewed OAG No. 91-79 I am still unsure of the
answer to the question, which statute controls regarding the
number of days absence which must be found before a child is a
habitual truant; the number stated in KRS 600.020(24) or the
number stated in KRS 159.150?
OAG 91-79 recites the definitions for "habitual truant" included in KRS 159.150 and
KRS 600.020(24) and concludes that the definitions cannot be reconciled in terms of their
language although perhaps the terms can be reconciled in their application. For purposes of
enforcing the truancy laws contained in the juvenile code we believe that the habitual truancy
definition contained in KRS 600.020(24) is controlling.
The Unified Juvenile Code provides that a truant child is considered a status offender.
KRS 630.020. A "status offense action" is:
[A]ny action brought in the interest of a child who is accused of
committing acts, which if committed by an adult, would not be a
crime. Such behavior shall not be considered criminal or
delinquent and such children shall be termed status offenders.
Status offenses shall not include violations of state or local
ordinances which may apply to children such as a violation of
curfew or possession of alcoholic beverages[.]
The definition of "habitual truancy" in the juvenile code KRS 600.020(24) is important in
ascertaining the district court's jurisdiction over truancy matters in the court system. This
definition provides that a child is a habitual truant if he has three unexcused absences or nine
unexcused tardy instances. Pursuant to KRS 630.020 the district court has exclusive jurisdiction
over status offenders such as a child who allegedly has been a habitual truant form school. Thus,
a district judge has jurisdiction over a child who has three unexcused absences or nine unexcused
tardy instances from school.
While we do not believe that KRS 159.150 affects the jurisdiction of the juvenile court
judge on a habitual truancy case, a reading of the compulsory attendance section of the education
laws reveals no significant distinction between a truant versus a habitual truant. The education
laws define truant and habitual truant as follows:
Any child who has been absent from school without valid excuse
for three (3) or more days, or tardy on three (3) or more days, is a
truant. Any child who has been reported as a truant three (3) or
more times is an habitual truant. Being absent for less than half of a
school day shall be regarded as being tardy.
As a practical matter the compulsory education section of the education law makes no
differentiation between treatment or penalties for truants or habitual truants. Thus parents may be
fined for wilfully failing to send their child to school for three days or nine days. KRS 159.990.
In summary, KRS 600.020(26) controls over KRS 159.150 in ascertaining the number of
days a child must have unexcused absences prior to being found habitually truant under the
Unified Juvenile Code.
Assistant Attorney General