Appeal of L.L.[1], on behalf of her child, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 18,191

(August 29, 2022)

Frazer & Feldman, LLP, attorneys for respondent, Bryan Georgiady, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District (“respondent” or “district”) that her child (the “student”) is not a district resident and, therefore, not entitled to attend the district's schools tuition-free.  The appeal must be sustained.

Prior to the events leading to this appeal, petitioner and the student lived within the district and the student attended respondent’s schools as a district resident.  Petitioner thereafter relocated to a location outside of the district (the “out-of-district address”) while the student remained with her grandmother, who resides within respondent’s district (the “in-district address”).  Petitioner attempted to enroll the student in respondent’s schools for the 2021-2022 school year, explaining that the student resided within the district.  Petitioner submitted affidavits from her and the grandmother to demonstrate that petitioner had transferred custody of the student to the grandmother due to the student’s severe medical conditions, which required constant monitoring and a first-story residence.

By letter dated August 23, 2021, the district denied the student admission to its schools, finding that petitioner did not live within the district and had not demonstrated a complete transfer of custody to the grandmother.  Petitioner appealed to respondent, which upheld the district’s determination on September 15, 2021.  This appeal ensued.  Petitioner’s request for interim relief was granted on October 26, 2021.

Petitioner argues that the student resides at the in-district address due to medical necessity and seeks a determination that the student is a district resident.  Petitioner contends that she has transferred custody of the student to the grandmother.

 Respondent argues that the appeal must be dismissed as petitioner has failed to meet her burden of proving that she resides within the district.  Respondent further contends that its determination regarding transfer of custody of the student was not arbitrary or capricious. 

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).

Petitioner has adequately rebutted the presumption that the student’s residence is with petitioner at the out-of-district address.  The affidavits of guardianship and custody submitted by petitioner and the grandmother to respondent state that the grandmother is responsible for “all [the student’s] needs.”  The grandmother also agreed to “assume full responsibility” for the student’s medical care and educational decisions.  In her affidavit, petitioner stated that she was transferring custody to the grandmother to maintain “medical consistency” for the student.   Although petitioner’s first affidavit stated that she would continue to provide for the student financially and make decisions regarding the student’s medical care and special education, the second affidavit—which she submitted to respondent after its August 23, 2021 determination—states that the grandmother will provide the student with “food[,] clothing[,] shelter[, and] anything needed.”  Petitioner admitted that she would continue to contribute to the student’s medical expenses, but nevertheless stated that the grandmother was “fully authorized” to make decisions relating to the student’s medical care and education.

In support of her contention that the student must reside with the grandmother due to the student’s medical conditions, petitioner submits a letter from the student’s physician and multiple prescription receipts.  These documents demonstrate that the student’s health issues are, indeed, severe and that petitioner’s concern for the student’s physical and mental state are supported by the record.  Under the circumstances, and in light of the statements petitioner made in her second affidavit, I find that petitioner has adequately rebutted the presumption that the student’s residence is with her (see Appeal of Ramirez, 40 Ed Dept Rep 163, Decision No. 14,449 [petitioner adequately rebutted the presumption of parental residence where his nephews fled terrorism in their home country of Colombia; arrived with petitioner, their uncle, on B-2 “pleasure” visas; and intended to apply for asylum following expiration of the visas]; see generally Sonya C. v Arizona School for the Deaf & Blind, 743 F Supp 700 [D Ariz 1990] [student’s U.S. “citizenship, physical presence in (a U.S. state), and wardship to long-time family friends was prima facie evidence of residence/domicile, entitling her to a free public education among other benefits and privileges”]; Matter of Moncrieffe, 121 Misc 2d 395 [Sur Ct, Nassau County 1983]). 

Respondent argues that the affidavits are not credible and that contradictions between the affidavits demonstrate that the reason the student was sent to live with petitioners was to take advantage of the schools in the district.  While it is true that a parent cannot establish residence where the sole reason their child is residing with another is to take advantage of the schools of the district (Appeal of Begum, 55 Ed Dept Rep, Decision No. 16,799), a student may establish residence apart from his or her parents for bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259).

On this record, I find that the medical treatment that the student requires is a bona fide reason for the student to establish residence apart from petitioner.  The record contains substantial evidence that the transfer of custody is necessary due to the student’s medical conditions.  Consistent with petitioner’s explanations, the record indicates that the student can only receive the life-sustaining medical care she needs at the in-district residence.  Thus, the student resides with the grandmother out of medical necessity, not to “take advantage” of its schools, as respondent suggests.  Respondent’s failure to consider the student’s medical needs and the attendant circumstances renders its decision arbitrary and capricious; it also distinguishes the prior decisions of the Commissioner cited by respondent (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,985 [no transfer of custody and control from petitioner to grandparents where petitioner referred to herself as the child’s “custodial parent” in the petition, delegated “educational rights and authority to assist” to the student’s aunt, and “submitted [no] evidence from the grandparents to lend support to her claim that they exercise[d] exclusive custody and control of the student”]; Appeals of T.M., 58 id., Decision No. 17,496 [purported transfer of guardianship to family friend; no explanation for necessity of transfer provided]; Appeal of C.W., 53 id., Decision No. 16,564 [purported transfer of guardianship to aunt; no explanation provided]; Appeal of Charles, 45 id. 92, Decision No. 15,268 [custody transferred “in order for [the student] to continue to have a better education ...”]; Appeal of D.H.C., 43 id. 468, Decision No. 15,053 [hardships of single parenting deemed insufficient to justify transfer of student to family friends]).

Based on the reasons stated above, I find that the student remains a resident of the district entitled to attend respondent’s schools tuition free.  In light of the foregoing, I need not address the parties’ remaining contentions.

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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