Appeal of JOSEPHINE TUTRANI, on behalf of a child, from action of the Board of Education of the Smithtown Central School District regarding residency.

Decision No. 18,543

(January 14, 2024)

Ingerman Smith, LLP, attorneys for respondent, Ellen M. Vega, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Smithtown Central School District (“respondent”) that a participant in an exchange program (the “student”) is not a district resident.  The appeal must be dismissed.

Petitioner resides in respondent’s district.  At the time of the events discussed herein, the student lived with her to attend an exchange program at a nonpublic school.  In August 2024, petitioner requested transportation for the students to the nonpublic school.  In connection therewith, the student’s parents attempted to transfer custody of the student to petitioner for the 2024-2025 school year.  Respondent denied the request on the basis that the student was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 24, 2024.

Petitioner argues that respondent impermissibly denied the student transportation based on her non-citizen immigration status.  Petitioner also argues that the student is a district resident based upon the parental transfer of custody.  Petitioner seeks an order directing respondent to transport the student to the nonpublic school she attends for the 2024-2025 school year.

Respondent contends that its determination was appropriate because the student, while physically present within the district, does not intend to remain therein.  Respondent denies that the students’ parents transferred custody of the student to petitioner.

Pursuant to Education Law § 3635, school districts must provide transportation to resident students within certain mileage limitations.  School districts are not required to provide transportation to non-residents (Appeals of Ward, 60 Ed Dept Rep, Decision No. 17,944; Appeal of G.S., 56 id., Decision No. 17,083).  Residence is established by one’s physical presence and intent to remain within a school district (Appeals of Ward, 60 Ed Dept Rep, Decision No. 17,944 see generally Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385 [2004]).

A child’s residence is presumed to be that of his or her parents or legal guardians (Catlin v Sobol, 155 AD2d 24, revd on other grounds 77 NY2d 552 [1991]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).  This presumption 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).

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).

Petitioner has not met her burden of proving that the student is a district resident entitled to transportation.  The record reflects that the student possesses a J-1 visa, which is a “nonimmigrant visa for individuals approved to participate in exchange visitor programs in the United States.”[1]  Although the Commissioner has held that a school district may not impose an irrebuttable presumption of residency based on a student’s visa status, such status is nevertheless relevant to a student’s intent to remain in the United States (see Appeal of Constantino, Jr., 59 id., Decision No. 17,764; Appeal of Esposito, 57 id., Decision No. 17,415; Appeal of Plata, 40 id. 552, Decision No. 14,555).  Thus, respondent reasonably construed the student’s J-1 visa as reflecting a temporary intention to reside with petitioner in the United States (Appeal of D.B., 64 Ed Dept Rep, Decision No. 18,488).

The temporary nature of the student’s physical presence is further supported by the purported transfer of custody to petitioner during the 2024-2025 school year.  This custodial agreement, which is entitled “Authorization for Temporary Custody of a Minor,” terminates on June 5, 2025.  “The Commissioner has long held that such time-limited efforts do not constitute a total transfer of custody” (Appeal of D.B., 64 Ed Dept Rep, Decision No. 18,488 [citing additional appeals]; see Appeals of Ward, 60 Ed Dept Rep, Decision No. 17,944). 

Accordingly, respondent appropriately determined that the students are not district residents entitled to transportation and the appeals must be dismissed (Appeal of D.B., 64 Ed Dept Rep, Decision No. 18,488; Appeal of Constantino, Jr., 59 id., Decision No. 17,764).  I have considered petitioner’s remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

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