Appeal of WILLIAM and CHERI COTTING, on behalf of their granddaughter GILLIAN ROSE, from action of the Board of Education of the Rhinebeck Central School District regarding residency.

Decision No. 16,955

(August 26, 2016)

Shaw, Perelson, May & Lambert, LLP attorneys for respondent, Margo L. May, Esq. of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Rhinebeck Central School District (“respondent”) that their granddaughter, Gillian Rose (“Gillian”), is not a district resident.  The appeal must be dismissed.

Petitioners reside within respondent’s district.  Gillian’s mother, petitioners’ daughter, previously resided within the district but currently lives outside the district.  Gillian’s father resides outside the district.  Gillian has resided with petitioners since April 27, 2005 and has attended respondent’s schools since she entered kindergarten in 2010.  In or about January 2016, respondent’s superintendent learned that Gillian’s mother no longer resided with her parents in the district, but instead resided in the Kingston City School District.

By letter dated January 20, 2016, an attorney representing petitioners and Gillian’s mother notified the principal of respondent’s elementary school that Gillian resided with petitioners and that petitioners exercised full authority and responsibility for Gillian.

In response, the superintendent sent a letter to the attorney requesting additional documentation including a copy of any legal documentation regarding custody of Gillian, a parental affidavit, a custody affidavit, a copy of Gillian’s parents’ State tax return and any other information relevant to Gillian’s residency.

On March 17, 2016, the superintendent received from the attorney a custody order from Dutchess County Family Court, an “Affidavit of Legal Responsibility (Parents),” an “Affidavit of Legal Responsibility (Custodial),” an affidavit signed by Gillian’s mother indicating that Gillian’s father had no objection to Gillian’s residency being with petitioners and Gillian’s mother’s 2014 State income tax return.

By letter dated April 7, 2016, the superintendent notified Gillian’s mother of respondent’s determination that Gillian was not a resident of the district.  The stated basis for the determination was:

1.You have not relinquished all parental rights for your child, as indicated in your Affidavit of Legal Responsibility.  In that document, you specifically crossed out that phrase and, in its stead, stated that you have determined that Cheri and William Cotting ‘shall exercise full authority’ and responsibility.  In addition, you continue to provide health and dental insurance for Gillian Rose.

2.You have not provided a reason for the transfer of authority to Cheri and William Cotting in your Affidavit of Legal Responsibility, other than that it is within your decision making authority pursuant to the 2008 Custody Order.  The reason stated by Cheri and William Cotting that it is the best interest of the child is, likewise, insufficient.

This appeal ensued.  On June 1, 2016, petitioners’ request for interim relief was determined to be moot because respondent permitted Gillian to continue attendance during the pendency of this appeal.

Petitioners assert that Gillian resides with them and that Gillian’s mother has relinquished custody and control of her daughter to them.  Petitioners maintain that Gillian’s mother possessed the authority to surrender parental control of Gillian by virtue of the 2008 family court order.

Respondent maintains that petitioners have not met their burden of establishing the facts upon which they seek relief.  Respondent asserts that neither of Gillian’s parents reside within the district and, therefore, its determination is neither arbitrary nor capricious.

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).

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, petitioners have not carried their burden of establishing that there has been a total and permanent transfer of custody and control over Gillian from her parents to petitioners.  I am not persuaded by petitioners’ argument that Gillian’s mother surrendered all parental rights to them, and that she was authorized to do so under a 2008 family court order between Gillian’s mother and father in which the mother was awarded “final decision making authority regarding all matters affecting the welfare of the child ....”  First, the court order specifically grants Gillian’s father joint custody and other rights, which there is no evidence that he has waived.[1]  Second, although the court order grants Gillian’s mother final decision-making authority regarding Gillian, it grants the parents joint custody and does not grant her authority to modify its custody provisions absent a superseding court order.

Moreover, in the “Affidavit of Legal Responsibility (Parents)” signed by Gillian’s mother, which appears to be a boilerplate form used by the district, the statement, “I ... hereby relinquish all parental rights...” is crossed out.  It is replaced with the handwritten notation “I ... previously determined that full authority and responsibility for my child Gillian Rose shall be exercised by Cheri and William Cotting.”  Another reference in the affidavit to “relinquishing all parental rights” was also crossed out and replaced with the following handwritten notation: “I determined that Cheri and William Cotting shall exercise full authority and responsibilities for my (our) child....”  Gillian’s mother’s modifications to this affidavit do not establish, even as to her custody rights, a relinquishment of total custody and control over Gillian to petitioners because the mother was unwilling to aver that she had relinquished “all parental rights” over Gillian. 

Moreover, 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).  Although the record reflects that petitioners provide for Gillian’s health, welfare and schooling and attend her medical appointments, social functions and school engagements, the record also indicates that Gillian’s mother claims her daughter as a dependent on her tax return and maintains Gillian as a dependent on her health and dental insurance plans.

On the totality of the record before me, I cannot conclude that there has been a total, permanent transfer of custody and control of Gillian to petitioners.  The presumption that Gillian resides with her parents has not been rebutted and I cannot conclude that respondent’s determination that Gillian is not a district resident is arbitrary, capricious or unreasonable.  Thus, the appeal must be dismissed.

Although the appeal is dismissed, I note that petitioners retain the right to reapply to the district for admission of Gillian at any time should circumstances change, and may present for respondent’s consideration any new information bearing on the question of residency.

THE APPEAL IS DISMISSED.

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