Appeal of D.A.J., on behalf of her son J.S., from action of the Board of Education of the Malverne Union Free School District regarding residency.

 

Decision No. 15,431

 

(August 1, 2006)

 

Ehrlich, Frazer & Feldman, attorneys for respondent, Philip Kouyoumdjian, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that her son, J.S., is not a district resident.  The appeal must be sustained in part.

During the 2005-2006 school year, J.S. attended the third grade at respondent’s Downing Elementary School.  Following reports that the student resided outside the district, respondent hired a private firm to investigate petitioner’s residency.  On Friday, January 26, 2006, an investigator observed the student exit the afternoon school bus and enter the Orlando Avenue property owned by his grandmother and identified by petitioner as her residence within the district.  Petitioner was observed driving her van that evening from Orlando Avenue to a residence on Koeppel Place in Hempstead, outside the district, where her vehicle is registered.  On Monday, January 30 and Friday, February 17, 2006 at around 7:00 a.m. each day, petitioner was observed exiting the Koeppel Place residence with her son and driving to the Orlando Avenue residence.  Petitioner’s van was also observed arriving around 7:00 a.m. at the Orlando Avenue residence on Tuesday morning, February 7, 2006.

By letter dated February 27, 2006, the district’s director of pupil personnel services (“director”) advised petitioner that she did not reside within the district and that J.S. would be excluded from respondent’s schools effective March 6, 2006.  Petitioner was given the opportunity to meet with the director to present evidence in support of her claim of residency.

On March 1, 2006, the director and the district’s registrar clerk met with J.S.’s father and grandfather and presented them with the surveillance evidence showing J.S. being transported in the mornings from Koeppel Place in Hempstead to Orlando Avenue.

By letter dated March 16, 2006, the president of the board of education notified petitioner that respondent affirmed the director’s residency decision and that J.S. would be excluded from school effective March 16, 2006.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 4, 2006.

Petitioner admits moving with J.S.’s father to a residence they purchased outside the district in 2003 but claims to have returned on March 21, 2006 to live with her parents at their residence on Orlando Avenue.  Petitioner asserts that J.S. has always lived with his grandparents on Orlando Avenue and that petitioner moved back there so J.S. could attend respondent’s school until guardianship could be transferred to his grandparents.

Respondent contends that petitioner and her son do not reside within the district.  Respondent argues that petitioner can have only one legal residence, and that her residence is the home she and J.S.’s father purchased outside the district in 2003.  Respondent also contends that petitioner has not rebutted the presumption that J.S. lives with his parents because she has not provided evidence that she relinquished total, permanent custody and control.

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).

During the pendency of this appeal, petitioner submitted an order of the Nassau County Family Court dated April 5, 2006, appointing J.S.’s grandparents as his legal guardians.  Because such a court order would be binding on respondent and the Commissioner in determining residency, this matter is remanded to respondent to make a new determination of the student’s residency that takes into account the April 5, 2006 court order, in accordance with the provisions of 8 NYCRR 100.2(y), and in light of the Commissioner’s decision in Appeal of D.R., 45 Ed Dept Rep ____, Decision No. 15,412.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent make a new determination whether J.S. is entitled to attend respondent’s schools pursuant to 8 NYCRR 100.2(y), and in accordance with the Commissioner’s decision in the Appeal of D.R., 45 Ed Dept Rep ____, Decision No. 15,412, and that said determination be made prior to August 22, 2006.

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