Appeal of P.T., on behalf of T.T., from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 16,080

(June 30, 2010)

Law Office of Noemi Fernandez, PLLC, attorneys for petitioner, Noemi Fernandez-Hiltz, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Andrew J. Freedman Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Williamsville Central School District (“respondent”) that her son, T.T., is not a district resident.  The appeal must be dismissed.

Petitioner resides in Williamsville within respondent’s school district.  T.T. is six years old and resided with petitioner and attended respondent’s Forest Elementary School until a September 30, 2009 Order to Show Cause issued by the Erie County Family Court immediately placed T.T. in the custody of his father, B.T., suspended petitioner’s access to T.T., prohibited petitioner from going to Forest Elementary School, and required B.T. to make all arrangements to transport T.T. to school.  Thereafter, an October 14, 2009 Temporary Order of Custody and Visitation issued by the New York Supreme Court, Erie County, required T.T. to reside with B.T. in West Seneca, outside the district.  On December 14, 2009, a second Temporary Order of Custody was issued by the Supreme Court directing that T.T.’s residence for school enrollment purposes only continue to be with petitioner in Williamsville during the pendency of the proceeding and that the Order remain in effect until further Order of the Court.

By letter dated December 7, 2009, petitioner was informed by respondent’s coordinator of student services (“coordinator”) that she must submit information of her son’s residence by December 18, 2009.    By letter dated December 21, 2009, the coordinator informed petitioner that T.T. is not a resident and would be excluded from respondent’s schools beginning December 30, 2009.  On January 11, 2010, T.T. began attending school in the West Seneca Central School District.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 28, 2010.

Petitioner contends that the December 14, 2009 Temporary Order of Custody establishes T.T.’s residence for school enrollment purposes to be with petitioner in respondent’s district pending ongoing court proceedings.  Petitioner asserts that T.T. will continue to reside with her after the court proceedings are completed.

Respondent contends that T.T. resides with B.T. in West Seneca.  Respondent alleges that petitioner is prohibited from entering Forest Elementary School and has only supervised visitation with T.T.  Respondent also contends that the appeal must be dismissed for failure to join B.T. as a party.  Respondent asserts that petitioner has not proved that T.T. resides with her or that its determination was arbitrary and capricious.

The appeal must be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555). 

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251). 

Where parents’ rights with respect to the student are clearly defined in a custody order and would not be altered by a residency determination, an appeal will not be dismissed for failure to join them as necessary parties (seeAppeal of a Student with a Disability, 46 Ed Dept Rep 60, Decision No. 15,441).  That is not the case here.  Both petitioner and B.T. have been named in recent court orders that appear to supersede an October 12, 2008 custody agreement that established joint custody of T.T.  Although the court orders do not explicitly amend the custody agreement, the September 30, 2009 Order to Show Cause placed T.T. in B.T.’s custody and the two subsequent Orders, both of which are temporary, address residency as distinct from custody.  If petitioner were to prevail in her appeal, B.T.’s rights regarding custody and transportation would be impacted.  The September 30, 2009 Order to Show Cause required B.T. to make all arrangements for T.T. to be transported to school and Education Law §3635 limits a board of education’s obligation to provide transportation services to children who are district residents (Appeal of Pyskadlo, 47 Ed Dept Rep 56, Decision No. 15,624).  Thus, petitioner’s failure to join B.T. as a necessary party requires dismissal of the appeal (Appeal of Pyskadlo, 47 Ed Dept Rep 56, Decision No. 15,624; Appeal of Dickinson, 39 id. 41, Decision No. 14,168).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.