Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Gates-Chili Central School District regarding residency.

Decision No. 15,556

(March 30, 2007)

Goldstein, Ackerhalt & Pletcher, LLP, Jay C. Pletcher, Esq. of counsel

MILLS, Commissioner.--Petitioner challenges a determination by the Board of Education of the Gates-Chili Central School District (“respondent”) that her son (the “student”) is not a district resident.  The appeal must be sustained.

The student is 12 years old and has attended respondent’s schools since September 1998, when he was enrolled in kindergarten.  From the time of his birth, the student has lived with his maternal grandparents within the district.  Petitioner also resided at the same address when she registered the student to attend school in the district.  By letter dated August 31, 2006, petitioner informed respondent that she no longer resided within the district due to employment and transportation needs, but that the student continued to live with his maternal grandparents.

On September 13, 2006, respondent notified petitioner that the student was not a resident of the district and would be excluded from school effective September 22, 2006.  On September 21, 2006, a petition was filed in Monroe County Family Court by the student’s maternal grandparents seeking custody of the student.  The appeal ensued.

On October 27, 2006, an Order of Custody was issued by Monroe County Family Court awarding custody of the student to his maternal grandparents.  On October 31, 2006, I issued an interim order directing respondent to admit the student to its schools pending the determination of this appeal.

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 550, 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 550, Decision No. 15,412).

I deny respondent’s request to reject the Order of Custody issued on October 27, 2006 as a basis for establishing the student’s residency.  A valid court order was issued transferring custody of the student to his maternal grandparents, who reside within the district.  That Court Order is determinative for residency purposes (seeAppeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412).  Therefore, petitioner has demonstrated that the student is a district resident entitled to attend respondent’s schools tuition free. 

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit the student to attend school in the Gates-Chili Central School District without the payment of tuition.

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