Decision No. 14,168

(July 22, 1999)

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the North Greenbush Common School District ("respondent") denying his request for transportation for his son, Todd, between petitioner's home in North Greenbush and a nonpublic school in Guilderland. The appeal must be dismissed.

Petitioner and his former wife, Jane Dickinson, share joint legal and physical custody of their son, Todd. Pursuant to a Family Court order dated November 27, 1996, Todd divides his time between his mother's home in Guilderland and his father's home in North Greenbush. Although the order does not designate either parent's address as Todd's legal residence for purposes of the Education Law, the order provides that Jane Dickinson is entitled to make the final determination as to which elementary school Todd will attend if the parties cannot otherwise agree. For several years, Todd has attended Christ the King School, a nonpublic school in Guilderland, and the Guilderland Central School District ("Guilderland") has provided textbooks and transportation for Todd from his mother's Guilderland residence.

During the 1996-97 and 1997-98 school years, respondent provided transportation for Todd between his father's North Greenbush home and Christ the King on days when Todd stayed with his father. However, prior to the start of the 1998-99 school year, respondent's district clerk sought the advice of counsel and was told that it was not obligated to provide transportation services for Todd. On or about August 27, 1998, school officials advised petitioner that Todd was not entitled to transportation services. Petitioner appealed this determination to respondent on September 8, 1998, and the appeal was denied by letter dated September 14, 1998. This appeal ensued. A request for interim relief was denied on November 6, 1998.

Petitioner asserts that the Family Court order designates the days that Todd resides with him, and that petitioner is entitled to transportation services from respondent on those days. He seeks a determination that Todd is a resident of respondent's district, and is entitled to transportation to and from Christ the King. Petitioner also requests compensatory damages for inconvenience and personal losses allegedly caused by receiving only two weeks notice that respondent would no longer provide transportation for his son.

Respondent contends that it is under no obligation to provide transportation services for Todd because he is a resident of another school district, that such services are being provided by Guilderland, and that parents cannot designate two school districts as Todd's legal residence at the same time for purposes of obtaining transportation. Respondent also raises three procedural objections. Respondent contends that Ms. Dickinson is a necessary party, because a determination in petitioner's favor in this appeal would affect her rights to obtain books and transportation services from Guilderland. Respondent further alleges that the Commissioner lacks jurisdiction to award monetary damages, and that the notice of petition failed to comply with "276.1 of the Commissioner's Regulations because it failed to mention petitioner's stay request.

I will first address respondent's procedural objections. The objection regarding the sufficiency of the notice of petition is moot, as petitioner's request for interim relief was denied on November 6, 1998. However, I sustain respondent's jurisdictional objection insofar as petitioner seeks compensatory damages. I have no authority to award monetary damages in an appeal brought before me pursuant to Education Law "310 (Appeal of Calhoun, 38 Ed Dept Rep 542, Decision No. 14,089).

Respondent further contends that Ms. Dickinson is a necessary party, since she is receiving textbooks and transportation services from Guilderland and a decision in petitioner's favor could result in the termination of those services. A party whose rights would be adversely affected by the determination of an appeal in favor of petitioner must be joined as a necessary party (Appeal of Soukey, 38 Ed Dept Rep 626, Decision No. 14,106; Appeal of Neufang, 38 id. 567, Decision No. 14,095). If petitioner were to prevail on his claim that Todd is a resident of respondent's district, Ms. Dickinson's right to obtain textbooks and transportation services from Guilderland would be impacted, because boards of education are only obliged to provide textbooks and transportation services to children who reside within the district (Education Law ""701[3] and [4], and "3635[1][a]). Thus, petitioner's failure to join Ms. Dickinson as a necessary party requires me to dismiss this petition (Appeal of Neufang, supra).

The appeal must also be dismissed on the merits. Education Law "3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free educational services to students whose parents or legal guardians reside within the district (Appeal of Razzano, 38 Ed Dept Rep ___, Decision No. 14,142; Appeal of Morgan, 38 id. 207, Decision No. 14,016; Appeal of Bogetti, 38 id. 199, Decision No. 14,014). A child’s residence is presumed to be that of his parents or legal guardians (Appeal of Morgan, supra). Where a child’s parents live apart, the child can have only one legal residence (Appeal of Plesko, 37 Ed Dept Rep 238, Decision No. 13,850; Appeal of Juracka, 31 id. 282, Decision No. 12,643; Appeal of Barron, 31 id. 1, Decision No. 12,545). Where a court order awards joint legal custody to both parents, and the child’s time is essentially divided between two households, it is the parents’ prerogative to designate the child’s residence for education purposes (Appeal of Razzano, supra; Appeal of Cortes, 37 Ed Dept Rep 114, Decision No. 13,818).

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and to establish the facts upon which petitioner seeks such relief (8 NYCRR "275.10; Appeal of Ogbunugafor, 38 Ed Dept Rep 105, Decision No. 13,994; Appeal of Robert D., 38 id. 18, Decision No. 13,975). In the instant case, the November 1996 Family Court order provided that the Dickinsons should try to reach agreement on all important aspects of their son's education. However, if no agreement could be reached concerning the elementary school that Todd was to attend, the Order authorized Ms. Dickinson to make the final determination. The record indicates that a decision was made to enroll Todd in a nonpublic school located in Guilderland where Ms. Dickinson resides, and Guilderland has been providing textbook and transportation services. There is no indication in the record, however, as to whether that decision was made by mutual agreement of the parties or unilaterally by Ms. Dickinson. Furthermore, there is no indication that the parents have ever made a specific designation that respondent's district would be Todd's district of residence for educational purposes, and the evidence in the record supports the opposite conclusion.

In sum, on the record before me, I find that petitioner has failed to sustain his burden to demonstrate a clear right to a declaration that Todd is a resident of respondent's district and is entitled to transportation services. A school district is not required to provide transportation for nonresident pupils (Education Law "3635; Appeal of Cline, 23 Ed Dept Rep 45, Decision No. 11,129). Respondent is thus not required to provide transportation services for Todd on the days that he stays with his father in East Greenbush (Appeal of Cline, supra). It is unavailing that respondent previously provided such transportation. A board of education is not required or authorized to continue to provide transportation that was previously supplied in error (Appeal of Rheaume-Wellenc, 37 Ed Dept Rep 83, Decision No. 13,811; Appeal of Pauldine, 35 id. 54, Decision No. 13,463; Appeal of McMillan, 31 id. 343, Decision No. 12,661).

THE APPEAL IS DISMISSED.

END OF FILE

---