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Decision No. 15,425

Appeal of ALMA AYERS, on behalf of her grandchildren DREQUAN ROBINSON and JUNAIYA DAVIS, from action of the Board of Education of the Jamesville-DeWitt Central School District regarding residency.

 

Decision No. 15,425

 

(July 7, 2006)

 

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Jamesville-DeWitt Central School District (“respondent”) that her grandchildren, Drequan and Junaiya, are not district residents.  The appeal must be sustained.

Petitioner resides on Easterly Terrace within respondent’s district.  Quinnika Ayers (“Ms. Ayers”), who is petitioner’s daughter and the children’s mother, resides on Westmoreland Avenue outside respondent’s district.

By letter dated December 7, 2005, respondent’s superintendent advised Ms. Ayers that she was not a district resident and that her children would be excluded from district schools as of December 23, 2005 absent proof of residency.

By letter dated December 9, 2005, Ms. Ayers informed the superintendent that her children were in the custody of petitioner who resided in respondent’s district, and provided respondent with amended orders of custody and visitation from the Onondaga County Family Court dated May 10, 2005.  The orders provide joint custody of Junaiya to petitioner, Ms. Ayers and Arthur Davis, joint custody of Drequan to petitioner and Ms. Ayers, and physical custody of both children to petitioner.  The district continued to stand by the initial determination and this appeal ensued.  Petitioner’s request for interim relief was granted on December 28, 2005.

Petitioner maintains that she has physical custody of her grandchildren and that they reside with her in respondent’s district.  Petitioner explains that she can provide her grandchildren with a more stable living environment than their mother.

Respondent argues that there is no evidence to rebut the presumption that the children reside with their mother outside the district.  Respondent alleges that the custody orders do not terminate the parental rights of Ms. Ayers, who has joint custody of the children.  Respondent further contends that the petitions for joint custody were made solely to take advantage of the schools in respondent’s district.  Respondent also contends that petitioner admits that the students spend time with their mother outside the district.

Initially, I must address the record in this appeal, beginning with petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In addition, petitioner’s and respondent’s memoranda of law contains belated assertions that are not part of the pleadings.  A memorandum of law should consist of arguments of law (8 NYCRR �276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540).  Therefore, while I have reviewed petitioner’s and respondent’s memoranda of law, I have not considered those portions containing new allegations that are not responsive to material or affirmative defenses set forth in the pleadings.

Education Law �3202(1) provides, in pertinent part:

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 statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “Residence” for purposes of Education Law �3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

Custody may be legally transferred from a parent or guardian to a third party by obtaining a court order or letters of guardianship from a court of competent jurisdiction.  Where a court of competent jurisdiction has legally transferred custody of a child, and the child actually lives with the court-appointed guardian, the Commissioner will accept the court’s order as determinative for residency purposes, and will not look behind the court’s decision to determine whether the custody transfer is bonafide (Appeal of D.R., 45 Ed Dept Rep ___, Decision No. 15,412).  This approach recognizes that a change in custody is a serious, life-changing event for all involved based on factors not always apparent in the context of a residency appeal to the Commissioner.  Any objection to the legitimacy of the transfer should be made before the court in a custody proceeding, not in a subsequent educational appeal to the Commissioner of Education (Appeal of D.R., 45 Ed Dept Rep ___, Decision No. 15,412).

     In the instant appeal, the court orders clearly award joint custody of Junaiya to petitioner, Ms. Ayers and Arthur Davis, joint custody of Drequan to petitioner and Ms. Ayers, and physical custody of both children to petitioner.  Accordingly, I will not look behind the order, but respect it as dispositive.

It is not disputed that the children live full-time with petitioner in respondent’s district.  The fact that Mrs. Ayers maintains a relationship with the children or retains other rights does not negate the fact that the children’s physical residence is with petitioner, in accordance with the court orders.  I find, therefore, that for the purposes of attending school tuition-free, Junaiya and Drequan are residents of respondent’s school district.

 

THE APPEAL IS SUSTAINED.

 

It is ORDERED that respondent allow Junaiya Davis and Drequan Robinson to attend school in the Jamesville-DeWitt Central School District without the payment of tuition.

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