Appeal of C.G., on behalf of her niece K.F.A., from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 16,642

(August 7, 2014)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that K.F.A. is not a district resident.  The appeal must be dismissed.

Petitioner is K.F.A.’s aunt and P.O. is K.F.A.’s mother.  Petitioner resides within respondent’s district.  P.O. owns a home in Brentwood, New York, outside respondent’s district.

During February 2014, respondent’s office of student services and central registration received information that neither P.O. nor K.F.A. resided within respondent’s district.  Specifically, it was reported that they both resided outside the district in Brentwood.  Based upon this information, a residency investigation was initiated.  During the course of this investigation it was determined that P.O. was the titled owner of the Brentwood address and had three motor vehicles registered to her there.  In addition, surveillance showed that on three separate mornings and three separate evenings between February 24 and 28, 2014, two vehicles registered to P.O. were observed at the Brentwood address during the early morning and evening hours.

By letter dated March 18, 2014,[1] respondent excluded K.F.A. from its schools, and P.O. was informed of her right to present evidence in support of K.F.A.’s residency within the district.

On March 20, 2014, a residency conference attended by P.O. and representatives of the district was held.  Petitioner did not attend the conference.

During the residency conference, P.O. admitted that she owned and presently resided at the Brentwood address.  Moreover, she stated that the home located in Brentwood was in foreclosure, and had been in foreclosure for a period of years.  P.O. only admitted to residing within the geographical confines of the district between July 2011 and August 2012.  While P.O. provided respondent with a lease dated March 22, 2014, purportedly establishing her new tenancy in an apartment in, Bay Shore effective May 15, 2014, she provided no other documentary evidence confirming her permanent residency within the district during the 2013-2014 school year.

By letter dated March 21, 2014, P.O. was informed that, based on the information gathered at the conference, K.F.A. would not be eligible to attend respondent’s schools.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 28, 2014.

Petitioner maintains that K.F.A. resides with her within the district.  Petitioner alleges that P.O. has surrendered parental control over K.F.A. to her.  Finally, petitioner provides a copy of a lease agreement allegedly establishing P.O.’s residency within the district.

Respondent maintains that the petition fails to state a claim upon which relief may be granted and that there has not been a total and permanent transfer of custody and control from P.O. to petitioner.

With her petition, petitioner submits a temporary guardianship agreement effective August 17, 2012 purportedly transferring temporary custody from P.O. to her “for as long as necessary.”   Respondent objects to the submission of this document as it was not before it at the time the residency determination was made.   Although this evidence was not previously considered, respondent has had ample opportunity to address it in its answer, and thus, I have considered the document (Appeal of Stagno, 51 Ed Dept Rep, Decision No. 16,304; Appeal of Landon, 49 id. 23, Decision No. 15,948).

Nevertheless, the appeal must be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927). 

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773). 

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820). 

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of Dennis, 47 id. 327, Decision No. 15,712).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of A Student with a Disability, 47 Ed Dept Rep 142, Decision No. 15,652).  

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828). 

On the record before me, petitioner has not met her burden of proving that there has been a total and permanent transfer of custody and control of K.F.A. to her.  As noted above, while petitioner has produced a “Temporary Guardianship Agreement” from K.F.A.’s mother, such document only purports to grant temporary custody and does not establish that there has been a permanent and total transfer of custody.  Indeed, the document states that the arrangement will be effective only “as long as necessary.”

Further, the petition includes allegations that suggest that P.O., K.F.A.’s mother, has not totally and permanently relinquished parental custody and control over K.F.A.  Petitioner alleges that K.F.A. spends alternating weekends with her mother and father, and that K.F.A.’s mother retains sole custody of her.  Petitioner also asserts that she provides for K.F.A.’s food and shelter but that P.O. provides clothing and extras and is routinely involved in K.F.A.’s life.

Finally, the record indicates that K.F.A.’s mother anticipated moving into an apartment in respondent’s district on May 15, 2014.  As a result, my Office of Counsel requested additional information from the parties as to whether P.O. had moved into the premises subject to the lease.  No response was provided by petitioner.  However, respondent’s Director of Student Services and Central Registration (“Director”) submitted an affidavit in which he avered that he was perplexed by P.O.’s submission at the March 20, 2014 conference of a lease dated March 22, 2014 and that the titled owner of the leased property was not a signatory to the lease.  Finally, the Director averred that he received no information that P.O. ever moved into the apartment or any other residence within the district.  Based upon the foregoing, I find no basis upon which to set aside respondent’s determination.

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on K.F.A.’s behalf at any time, should circumstances change, and present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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