Appeal of MELISSA HAMEL, on behalf of her children MIKAYLA, MADISON and KATHRYN, from action of the Board of Education of the Beekmantown Central School District regarding residency.

Decision No. 17,228

(October 23, 2017)

Stafford, Owens, Piller, Murnane, Kelleher & Trombley, PLLC, attorneys for respondent, Jacqueline M. Kelleher, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Beekmantown Central School District (“respondent”) that her children, Mikayla, Madison and Kathryn (“the students”), would not be permitted to continue enrollment in respondent’s schools “when/if” petitioner moves outside of the district.  The appeal must be dismissed. 

During the 2016-2017 school year, the students attended school in respondent’s district.  At the time this appeal was commenced, petitioner resided within respondent’s district but was considering relocating to a residence outside the district.  The record indicates that petitioner and the students’ father do not live together; however, he also resides within respondent’s district.  The record also indicates that while petitioner has sole physical and legal custody, the students spend between two and five nights per week at their father’s house.

By letter dated May 1, 2017, petitioner wrote to respondent and requested that the students be allowed to continue attending the schools in respondent’s district in the event that she decides to relocate outside the district. By letter dated May 11, 2017, respondent’s registrar denied petitioner’s request and notified petitioner that when/if she moved outside the district the children must be enrolled in, and attend the schools of, the new district.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 23, 2017.

Petitioner contends that if she moves outside of respondent’s district, the students should remain residents of respondent’s district “due to residency when with their father ....”  Petitioner seeks an order that the students “will remain residents” and therefore will be entitled to attend school in respondent’s district without the payment of tuition. 

Respondent argues that the appeal should be dismissed for failure to join the student’s father.  Respondent also argues that petitioner has failed to meet her burden of proof.  Respondent maintains that the actions of the district were in accordance with the laws of the State of New York and the district’s school admission policy, and that its decision was not arbitrary or capricious.

The appeal must be dismissed as premature.  The record indicates, and the parties do not disagree, that at the time this appeal was commenced petitioner resided within respondent’s district. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  While petitioner states that she is “looking at relocating,” there is no evidence in the record before me that she has moved outside the district.  Therefore, she presents no justiciable controversy but, rather, seeks an advisory opinion and the appeal must be dismissed.

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

THE APPEAL IS DISMISSED.

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