Appeal of N.J., on behalf of her son, from action of the Board of Education of the City School District of the City of Troy regarding residency.

Decision No. 18,317

(August 2, 2023)

Guercio & Guercio, LLP, attorneys for respondent, Anthony J. Fasano, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the City School District of the City of Troy (“respondent”) that her child (the “student”) is not a district resident.  The appeal must be dismissed.

On September 8, 2021, petitioner registered the student in respondent’s district.  Petitioner identified her address as one located within the attendance zone for Carroll Hill Elementary (“Carroll Hill”).  The student thereafter attended Carroll Hill.

On December 2, 2022, respondent received a lease agreement indicating that petitioner moved to an address located within the attendance zone for School 2 Elementary (“School 2”).[1]  As a result, on December 2, 2022, respondent informed petitioner that the student would be assigned to School 2.  That same day, petitioner requested that the student be permitted to remain at Carroll Hill, asserting that he resided with her cousin at another residence in the Carroll Hill attendance zone.

On December 7, 2022, petitioner and the cousin submitted affidavits purporting to transfer custody of the student to the cousin.  On December 14, 2022, the district determined that petitioner had failed to prove a transfer of custody.  Therefore, respondent assigned the student to attend School 2.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 27, 2023.

Petitioner contends that the student resides with her cousin, to whom she has transferred custody of the student, in the Carroll Hill attendance zone.  Petitioner seeks a determination that the student is entitled to attend Carroll Hill.

Respondent claims, among other things, that the petition must be dismissed as untimely.  Respondent further maintains that petitioner has failed to prove a total transfer of custody and control of the student to her cousin. 

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Here, petitioner admits that respondent denied her request on December 14, 2022.  Petitioner did not commence this appeal until January 20, 2023, 37 days later.[2]  Petitioner does not provide any explanation for the delay.  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  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).

Generally, if a child’s parent or legal guardian continues to provide financial support for the child’s room, board, clothing, and other necessities, the parent or guardian has not relinquished custody and control (see Catlin v Sobol, 77 NY2d 552, 562-562 [1991]; Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where the child’s parent or legal guardian retains decision-making authority over important matters such as the child’s medical care or education, a total transfer of custody and control has not occurred (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin, 77 NY2d at 562).

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).

Here, petitioner has failed to demonstrate a complete transfer of custody and control of the student to her cousin.  Affidavits completed by petitioner and the cousin in connection with the alleged transfer reflect that petitioner’s cousin has “temporary guardianship” of the student and that, due to “personal family matters and health issues,” the student would be residing with petitioner’s cousin “until further arrangements [were] made between the family involved.”  The cousin’s affidavit also indicates that petitioner retains responsibility for receiving and responding to educational matters, authorizing medical treatment, releasing records, providing consent, and the cost of the student’s living expenses.  The time-limited nature of the purported transfer and the fact that petitioner retains significant legal authority prevent these documents from being considered a total transfer of custody and control (Appeal of Suprunchik, 61 Ed Dept Rep, Decision No. 18,074; Appeals of Ward, 60 id., Decision No. 17,944; Appeal of Menzer, 59 id., Decision No. 17,768).

In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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