Appeal of S.F., on behalf of a child, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 18,132

(June 13, 2022)

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

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that her nephew (“the student”) is not a district resident entitled to attend the district’s schools tuition-free.  The appeal must be sustained.

Petitioner, the student’s aunt, resides within respondent’s district (the “in-district address”).  Pursuant to a Family Court order dated September 5, 2019, petitioner has custody of the student; the student’s mother has supervised visitation.

On February 3, 2022, an assistant principal of one of the district’s elementary schools (“assistant principal”) spoke with the student’s mother and petitioner concerning a transportation request.  According to the assistant principal, both the student’s mother and petitioner suggested that the student would no longer live at the in-district address.  By letter dated February 7, 2022, respondent determined the student was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 16, 2022.

Petitioner argues that the student is entitled to attend respondent’s schools because he lives with her in respondent’s district. 

Respondent argues that petitioner lacks standing.  On the merits, respondent argues that its determination was appropriate because petitioner and the mother admitted that the student lived with the mother outside of the district and the order stating petitioner has custody is “temporary” in nature.

First, I must address the threshold issue of standing.  An individual may not maintain an appeal pursuant to Education Law § 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

In this case, petitioner is a resident of respondent’s school district with custody of the student.  While respondent characterizes the Family Court order as “temporary,” the order has no expiration date or terms by which it will, or can be, revoked.  Therefore, I find that petitioner has standing to bring this appeal (see Appeal of a Student with a Disability, 47 Ed Dept Rep 142, Decision No. 15,652; Appeal of Riccinto, 46 id. 39, Decision No. 15,435; Appeal of E.J., 46 id. 36, Decision No. 15,434).

Turning to the merits, Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

The presumption that a child resides with his or her parent or legal guardian can be rebutted upon a determination that the parent or guardian has executed a total, and presumably permanent, transfer of custody and control of the child to a third party (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  Although a formal transfer of custody and control through a guardianship or Family Court proceeding is not required to establish a child’s residency for purposes of Education Law § 3202, the evidence must demonstrate that the child’s permanent residence is within the district and that the individual exercising custody and control of the child has full authority and responsibility with respect to the child’s support and care (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

Where a court of competent jurisdiction has legally transferred custody of a child, the Commissioner will accept the court’s order as determinative of the child’s residency for purposes of Education Law § 3202, absent proof that the child does not, in fact, reside with the court-ordered custodian (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Naab, 48 id. 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801).  Any objection to the legitimacy of a court-ordered transfer of custody should be made before the court itself, not in an appeal to the Commissioner of Education (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Naab, 48 id. 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).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, it is undisputed that petitioner lives in respondent’s school district and has custody of the student.  Respondent nevertheless argues that the student is not a district resident based on information shared by the student’s mother and petitioner on February 3, 2022.  The assistant principal asserts in an affidavit that the student’s mother reported “tension” within petitioner’s home such that “the student could no longer be left alone with his cousins ... and that she and [p]etitioner were unavailable to supervise all the children in [the household].”  The student’s mother requested that the student be picked up and dropped off at a location outside of respondent’s district.  The assistant principal denied this request. 

The assistant principal also spoke directly to petitioner on February 3, 2022, who confirmed that “she did not want the student living with her ... and that [the mother] had taken the student to her address.”

While the above statements are inconsistent with petitioner’s claim of residency, they did not change the student’s legal residence.  As stated above, the presumption that a child resides with his or her parent or legal guardian can be rebutted upon a determination that the parent or guardian has executed a total, and presumably permanent, transfer of custody and control of the child to a third party (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of C.B-M., 55 id., Decision No. 16,844; Appeal of Jackson, 54 Ed Dept Rep, Decision No. 16,640 [rejecting evidence of students’ physical presence outside of district as dispositive where record did not demonstrate a “transfer of parental custody and control from petitioner” to another]).  Respondent has produced no evidence of such a transfer.

In any event, the record does not support respondent’s conclusion that the student moved outside of the district.  According to the assistant principal, petitioner contacted her again on February 4, 2022 to “inform [] [her] that the student and the mother resided with her in the district.”  In the petition, petitioner explains that she had previously “requested that [the student’s] busing change due to lack of supervision,” but that she and the student’s mother subsequently “made arrangements to adjust [their] work schedule[s].”  The record contains no information to contradict this assertion.

Finally, respondent did not comply with 8 NYCRR 100.2 (y) in rendering the residency determination that gave rise to this appeal.  That provision requires that, “[p]rior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district” (8 NYCRR 100.2 [y] [6]).  Respondent did not offer petitioner such an opportunity prior to its February 7, 2022 determination.  Additionally, respondent failed to provide “the specific basis for the determination that the child is not a resident of the school district ....”  The written notice’s statement that “[t]he basis for this determination is that you are neither a resident ... nor are you presently considered an exception to the residency regulations” is so generic that it could apply to any residency determination.  I admonish respondent to ensure that it provides legally sufficient written notice consistent with 8 NYCRR 100.2 (y) (6) when making a determination of non-residency (see Appeal of Mayers-Tarbell, 61 Ed Dept Rep, Decision No. 18,043 [remanding residency decision to district for failure to fully comply with 8 NYCRR 100.2 (y)]; Appeal of a Student with a Disability, 36 id. 81, Decision No. 13,664 [same]).

Accordingly, the student is entitled to attend respondent’s schools as a district resident because he lives with petitioner pursuant to a Family Court order, and there is no proof that the student does not in fact reside with petitioner or that he resides outside of respondent’s district (see Appeal of a Student with a Disability, 47 Ed Dept Rep 142, Decision No. 15,652).

To the extent they are not specifically addressed herein, respondent’s remaining arguments are without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the student to the schools of the district without the payment of tuition.

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