Appeal of Y.S., on behalf of his nephew, from action of the New York City Department of Education regarding residency.

Decision No. 18,173

(August 18, 2022)

The Law Firm of Tamara Roff, P.C., attorneys for petitioner, Lauren A. Goldberg, Esq., of counsel

Hon. Sylvia Hinds-Radix, Corporation Counsel, attorney for respondent, Wynee Ngo, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the New York City Department of Education (“respondent”) that his nephew (the “student”) is not a district resident.  The appeal must be sustained.

Petitioner is a resident of respondent’s district.  Prior to the events described herein, the student lived with his mother in New Jersey and attended a nonpublic school therein.  In June 2019, the student’s mother became ill and was hospitalized.

By order dated June 24, 2019, the Superior Court of New Jersey declared that petitioner and the mother shared “joint residential custody … while [the mother was] in the hospital” (the “2019 order”).  The court indicated that the parties could, following the mother’s release, “file a new application [concerning the student’s custody].”

In July 2020, petitioner requested that respondent develop an individualized education program (“IEP”) for the student.  The student’s mother was released from the hospital later that month.

In August 2020, respondent concluded that the student was not a district resident.  Petitioner thereafter sought an updated order from New Jersey Superior Court.

On September 1, 2020, Superior Court issued a second order regarding custody of the student (the “2020 order”).  As discussed below, the 2020 order awarded a degree of legal and residential custody to petitioner and the student’s mother, ordering that “[t]he [student] is the be enrolled in the district where [petitioner] resides” (sic).

By prior written notice[1] dated August 17, 2021, respondent determined that the student was not a district resident.  This appeal ensued.

Petitioner asserts that respondent failed to follow the procedure outlined in 8 NYCRR 100.2 (y) to determine the student’s residency.  Petitioner further argues that he has custody of the student, as evidenced by the 2019 and 2020 orders.  Petitioner seeks a determination that the student is a resident of the district entitled to attend its schools tuition free.

Respondent argues that the 2020 order bestows the student’s mother with sole legal custody of the student.  As such, respondent argues, it correctly determined that the student resides in New Jersey.

First, I must address the process by which respondent arrived at its residency determination.  For reasons that are unclear from the record, respondent took over seven months to issue a residency determination after it issued a preliminary finding of non-residency on January 27, 2021.  Additionally, respondent embodied its decision within a prior written notice required under the Individuals with Disabilities Education Act (IDEA).  As I have previously held, a prior written notice “is an inappropriate vehicle to communicate a residency determination” (Appeal of A.L., 61 Ed Dept Rep, Decision No. 18,041; see also Appeal of R.A. and D.A., 61 id., Decision No. 18,047, app to reopen denied, 61 id., Decision No. 18,061).

Nevertheless, I decline to remand this appeal to respondent.  Petitioner has had a full and fair opportunity to present evidence of the student’s residency, which revolves around an interpretation of the 2019 and 2020 custody orders.  However, in light of respondent’s previous noncompliance with 8 NYCRR 100.2 (y), I will direct respondent to review its procedures for issuing residency determinations (Appeal of R.A. and D.A., 61 id., Decision No. 18,047, app to reopen denied, 61 id., Decision No. 18,061; Appeal of A.L., 61 id., Decision No. 18,041).

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).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

The student’s residency hinges upon the language of the 2020 order.  Unfortunately, the language of that order is susceptible to contrasting interpretations.  The pertinent provisions are reproduced below:

The [mother] has filed an emergent application seeking joint legal and share residential custody of the minor child ... The request for emergent relief is hereby granted for the following reasons: [the mother] has provided evidence ... that would rise to the level of immediate and irreparable harm ... [The mother] is hereby granted legal custody with shared residential custody granted to both [petitioner] ... and [the mother] of the minor child ... The [student] is the be enrolled in the district where [petitioner] resides (sic).

The purported grant of “legal custody” to the mother alone suggests that custody remains with her, and the student remains a resident of New Jersey for the purposes of school enrollment.  Petitioner’s and the mother’s shared residential (i.e., physical) custody is irrelevant.  The fact that a student does not live with his or her legal guardian does not rebut the presumption of parental residence (e.g., Appeal of D.M. and J.D., 61 Ed Dept Rep, Decision No. 18,031; Appeal of T.M., 58 id., Decision No. 17,496; Appeal of A.F., 41 id. 115, Decision No. 14,633).[2]

On the other hand, this language could be interpreted as granting joint legal and physical custody to petitioner and the mother.  This would be consistent with the unconditional grant of petitioner’s requested relief; namely, “joint legal and share[d] residential custody.”  It would also be consistent with the court’s order that the student “be enrolled in the district where [petitioner] resides” because, absent joint legal custody, the court would lack authority to order such relief.

Considering the court’s expressed will to “enroll [the student] in the district where [petitioner] resides,” I find the latter interpretation more persuasive.  The Commissioner has long stated that 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).  This principle recognizes that courts are in the best position to evaluate the language and intent of their own custody orders – particularly where those orders were issued by courts in another jurisdiction.  Therefore, unless and until a new custody determination is made, I find that the student is entitled to attend respondent’s schools tuition-free.

I have considered the parties’ remaining arguments and find them to be without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the student to the schools of its district without the payment of tuition; and

IT IS FURTHER ORDERED that, within 30 days of this order, respondent review its procedures for issuing residency determinations.

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