Appeal of SUSAN MURILLO, on behalf of ANTHONY MUSCARELLA, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 16,806

(August 5, 2015)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her godson is not a district resident.  The appeal must be dismissed.

Petitioner is a district resident and Anthony Muscarella’s (“Anthony”) godmother.  Petitioner asserts that Anthony has resided with her at the in-district residence since September 3, 2014 and that Anthony’s mother has given petitioner custodianship over Anthony.

On September 2, 2014, Anthony’s mother sought to enroll Anthony in respondent’s schools.  According to respondent, Anthony’s mother indicated to various district officials, that she resided outside the district but that she would provide respondent an in-district address in order to enroll Anthony in respondent’s Sewanhaka High School.  The following day, September 3, 2014, petitioner submitted a registration packet containing forms and supporting affidavits listing Anthony’s address as petitioner’s.  Included in this submission was a “Parent’s Affidavit” signed by Anthony’s mother dated September 3, 2014, indicating that Anthony is living with petitioner at the in-district residence; that Anthony will continue to reside with petitioner until his mother establishes a permanent residence; and that she was not relinquishing custody and control of Anthony to petitioner.[1]  Also included was a “Custodian’s Affidavit” stating that Anthony is her godson; that he had lived with her since September 3, 2014, and will continue to do so until “permanent residence is stablish” [sic]; that Anthony’s mother would provide food, clothing, and all other necessities; and that both she and Anthony’s mother would be responsible for matters related to Anthony’s education.

By letter dated September 3, 2014, respondent’s administrative assistant to the superintendent (“administrative assistant”) notified petitioner that Anthony was determined not to be a resident of the district.  The stated basis for the determination was, “Parental Residence Out of District & No Bona Fide Relinquishment of Care, Custody & Control of the Student.”  This appeal ensued.  Petitioner’s request for interim relief was denied on September 16, 2014.

Petitioner asserts that Anthony resides with her and that Anthony’s mother has relinquished custody and control of Anthony to her.  Petitioner requests a determination that Anthony is a resident of respondent’s district and is entitled to attend its schools tuition-free.

Respondent asserts that petitioner failed to establish that a permanent relinquishment of custody and control occurred sufficient to rebut the presumption that Anthony's residence continues to be that of his mother and that the sole reason for petitioner’s claim is to take advantage of the district’s schools.  Respondent maintains that it properly determined that Anthony was not a resident of its school district.

As an initial matter, I note that the appeal must be dismissed for failure to exhaust administrative remedies.  As a prerequisite to appeal pursuant to Education Law §310, a petitioner must exhaust administrative remedies when there is a legal mandate or applicable provision of law requiring exhaustion (see Appeal of Moultrie, 33 Ed Dept Rep 89, Decision No. 12,987).  Section 100.2(y) of the Commissioner’s regulations provides that:

[t]he board of education or its designee shall determine whether a child is entitled to attend the schools of the district.  Any decision by a school official, other than the board or its designee, that a child is not entitled to attend the schools of the district shall include notification of the procedures to obtain review of the decision within the school district.

The administrative assistant’s letter specifically advised petitioner that, “[u]nder Board Policy and Administrative Regulation 5118,” petitioner could appeal the determination to the district’s administrative review officer, “within ten working days of receipt of [the September 3, 2014 determination]” and that petitioner may appeal the administrative review officer’s “final determination” to the Commissioner within 30 days of that determination.   In light of §100.2(y), petitioner was required to avail herself of these procedures (see Appeal of Moultrie, 33 Ed Dept Rep 89, Decision No. 12,987).  Therefore, the appeal must be dismissed for failure to exhaust administrative remedies. 

Even if the appeal were not dismissed on procedural grounds, it would nonetheless be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part, as follows:

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).

Custody may be legally transferred from a parent or guardian to a third party by obtaining a court order or letters of guardianship from a court of competent jurisdiction.  Where a court of competent jurisdiction has legally transferred custody of a child, and the child actually lives with the court-appointed guardian, the Commissioner will accept the court’s order as determinative for residency purposes, and will not look behind the court’s decision to determine whether the custody transfer is bona fide (Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).  This approach recognizes that a change in custody is a serious, life-changing event for all involved based on factors not always apparent in the context of a residency appeal to the Commissioner.  Any objection to the legitimacy of the transfer should be made before the court in a custody proceeding, not in a subsequent educational appeal to the Commissioner of Education (Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).

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 or legal guardian 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).

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 carried her burden of establishing that there has been a total and permanent transfer of custody and control over Anthony from Anthony’s mother to petitioner.  Indeed, the documentation submitted in support of petitioner’s request for admission on September 3, 2014 states that Anthony’s mother will continue to provide support, including food, shelter and clothing, and that she will continue to exercise control over Anthony’s activities and behavior. 

Moreover, petitioner asserts that Anthony sees his mother every day and that his mother would continue to provide “assistance” with his food, shelter, and clothing and that she “exercises control over” Anthony’s activities and behavior.  Although petitioner subsequently submitted with the verified petition a custodial affidavit and a parent affidavit stating that the student would be permanently residing with petitioner and that there had been a relinquishment of custody and control, these documents are dated September 9, 2014 – subsequent to respondent’s September 3, 2014 determination letter.  Additionally, I take administrative notice of a subsequent appeal filed by Anthony’s mother (Appeal of Peppaceno, Appeal No. 20077) which is currently pending.  In that appeal, Anthony’s mother asserts that she resides with Anthony at petitioner’s in-district address.  That statement belies her assertions in this appeal that she has permanently relinquished custody and control of Anthony to petitioner.  Accordingly, it appears that the custody arrangement described in the petition was only intended for the purpose of facilitating the student's attendance of the district's schools.

On the totality of the record before me, I cannot conclude that respondent’s determination that Anthony is not a district resident was arbitrary or capricious, and thus, it will not be overturned.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of Anthony at any time should circumstances change, and may present for respondent’s consideration any new information bearing on the question of residence.

THE APPEAL IS DISMISSED.

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