Decision No. 12,968

(August 2, 1993)

Donald J. Noonan, P.C., attorney for petitioner

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that her niece, Sarah, is not a resident of the Laurel Common School District, and its refusal to continue to pay her tuition to attend high school in the Matituck Union Free School District. She requests that I issue an order directing respondent to readmit her niece to school as a resident of the Laurel district and to continue to pay tuition for her to attend Matituck High School. The appeal must be sustained in part.

Petitioner resides in the Laurel Common School District. In July 1992, petitioner's niece, Sarah, came to live with her. Sarah's parents are divorced and both reside in Massachusetts. Apparently, Sarah had lived with her mother prior to moving in with petitioner.

In September 1992, Sarah, along with other secondary education students residing in the Laurel Common School District, began attending school at Matituck High School in the Matituck Union Free School District at respondent's expense. The Matituck School District receives secondary students from respondent's school district pursuant to a contract between the districts pursuant to Education Law '2040. In November 1992, respondent requested that petitioner and Sarah's mother fill out certain forms supplied by respondent pertaining to Sarah's residence. On or about November 19, 1992, petitioner submitted the completed forms. On January 19, 1993, respondent notified petitioner that, based on its review of the forms, it had determined that Sarah was not a resident of its district. Petitioner initiated this appeal and requested that I issue an interim order permitting her niece to continue to attend school at Matituck High School at respondent's expense during the pendency of this appeal. On February 8, 1993, I issued such an order.

Petitioner asserts that respondent did not comply with the procedural requirements of 8 NYCRR 100.2(y) prior to making its determination. On the merits, petitioner asserts that she has sole custody and control of her niece, and that, due to Sarah's strained relationship with her parents and because of the unhealthy environment in her mother's home, the arrangement is permanent. Petitioner indicates that she alone supports and supervises Sarah.

Respondent argues that it has complied fully with 8 NYCRR 100.2(y) and that the form affidavits submitted by petitioner in November 1992 support its conclusion that Sarah is residing in the Laurel school district solely to attend Matituck High School. Respondent contends that, since she is living with her aunt only to take advantage of the school district, petitioner's niece is not a resident of its district and the appeal should be dismissed.

Respondent also raises a procedural defense which I will address prior to reviewing the merits of the appeal. Respondent argues that the appeal must be dismissed because petitioner has failed to name and serve the Matituck Union Free School District as a respondent. Respondent asserts that because the Matituck School District receives secondary level students from respondent's district, such as petitioner's niece, the district must be joined as a necessary party to the appeal.

Respondent sends its secondary students to the Matituck School District pursuant to Education Law '2040, which authorizes a school district to contract with a neighboring district for the education of its students. A determination that petitioner's niece is a resident of respondent's district would entitle her to continue to attend Matituck High School pursuant to the contract between the districts. In fact, Sarah had already attended Matituck High School throughout the fall semester under the contract and continued to attend pursuant to my February 8, 1993 interim order. Thus, any duties or responsibilities that the Matituck Union Free School District may have in relation to Sarah derive from its contract with respondent and will not be affected by the determination in this appeal involving the residency of a single student. Similarly, a determination that Sarah is a resident of respondent's school district and is entitled to attend Matituck High School can be effectuated by the existing contract between the districts. Therefore, I do not find the Matituck Union Free School District a necessary party to this appeal.

After reviewing the record before me, I am not satisfied that respondent fully complied with the requirements of 8 NYCRR '100.2(y) prior to rendering its decision regarding Sarah's residency. Section 100.2(y) requires,

Respondent argues that, by asking petitioner and Sarah's mother to complete and submit custodial and parental affidavit forms, it afforded them an "opportunity to submit information" concerning Sarah's residency in compliance with '100.2(y). Petitioner contends, however, that she believed that she was being asked to fill out the forms for administrative reasons and had no knowledge that the forms were intended to establish residency or that there were questions concerning her niece's residence. She asserts that, consequently, she did not provide respondent with a complete explanation of the circumstances surrounding the family's personal decision to make these living arrangements. Petitioner has now, for the first time, submitted additional information in this appeal that was not before respondent when it made its decision in January 1993. Petitioner also argues that she was denied a hearing at which to present such additional information for respondent's consideration.

Although '100.2(y) of the Commissioner's Regulations does not require a board of education to hold a formal hearing in connection with a determination of residency, the procedures require school districts to provide individuals with a meaningful opportunity to address a school district's concerns regarding a student's residency before making its final determination. A request merely to fill out and return forms provided by the district does not constitute "an opportunity to present information" within the meaning of '100.2(y). Although the information provided on the forms raised a serious question regarding Sarah's residency, at that point respondent should have afforded petitioner an opportunity to present any information she considered relevant on the question of her niece's residency. No matter how obvious the issue of residency may have appeared to respondent based upon the information submitted on its forms, respondent was, nonetheless, required to afford petitioner an opportunity to submit her own information on the issue as well (Appeal of Sandra G., 32 Ed Dept Rep 80). Had petitioner been afforded such an opportunity, the additional material submitted by petitioner with this appeal would have been considered in the first instance by respondent. Because respondent has not fully complied with the procedural requirements of 100.2(y), the matter must be remanded to enable respondent to consider all the information petitioner wishes to submit.

While the initial forms submitted by petitioner indicate that Sarah was living with her to attend school in respondent's district, the additional material submitted in this appeal offers evidence of an independent basis for Sarah's living arrangements. Residence is based upon an individual's physical presence as an inhabitant within the district and upon the individual's intent to remain (see, Appeal of Anthony Stokes, 32 Ed Dept Rep 93). Although a student's residence is presumed to be that of her parent or legal guardian, respondent correctly points out that an unemancipated child may establish a residence apart from one's parents when the parents permanently relinquish custody and control (Caitlin v. Sobol, 77 NY2d 552). Although a separate residence is not established when a student is living with someone other than a parent solely to take advantage of the schools of the district (Appeal of Ritter, 31 Ed Dept Rep 24), a student may establish a residence apart from his parents for other bona fide reasons (e.g. family conflict, see, Matter of Staulcup, 20 Ed Dept Rep 11). Therefore, when there are overriding reasons for establishing one's residence apart from one's parents, aside from taking advantage of the educational programs of the district, and all the indicia of residency have been met, the fact that the choice of residence incidentally affords the student the opportunity to attend a certain school is not determinative (Matter of Moncrieffe, 121 Misc 2d 395). Accordingly, on remand respondent must consider all of the information petitioner provides on the question of residency and make it's determination after full consideration of the evidence.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED; and

IT IS ORDERED that respondent immediately afford petitioner an opportunity to present information regarding the issue of Sarah Coyne's residency in the Laurel Common School District and that a determination be made in accordance with 8 NYCRR '100.2(y).

IT IS FURTHER ORDERED that the February 8, 1993 interim order is vacated, and any future appeal by petitioner from an adverse determination by respondent may include a new request for an interim order pursuant to 8 NYCRR '276.1.

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