Appeal of TIVEN PERRY, on behalf of her granddaughter CHANEL LEWIS, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 15,995

(October 26, 2009)

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that her granddaughter, Chanel, is not a district resident.  The appeal must be sustained.

Petitioner is a district resident and the court-appointed legal guardian of Chanel, who attends respondent’s schools. Chanel’s mother, Julia Robert, lives outside the district in Roosevelt, New York.

In May 2008, respondent’s investigator observed Chanel traveling from Roosevelt to respondent’s schools during school hours, and in September 2008, respondent initiated a residency investigation.  From September to October 2008, respondent conducted surveillance of petitioner’s and Ms. Robert’s residences.  Chanel was observed at her mother’s residence on six occasions during school hours. By letter dated October 10, 2008, respondent notified petitioner that Chanel was found not to be a district resident and that her last day of attendance would be October 22, 2008.

Thereafter, the district held a registration review conference.  Petitioner and Ms. Robert appeared and submitted documentation in support of their claim of Chanel’s residency, including a lease agreement, petitioner’s order of guardianship and affidavits attesting to Chanel’s district residency.  At the conference, petitioner explained that she obtained guardianship of Chanel because her mother frequently traveled and was unable to care for her.  It was further explained that her mother visits with Chanel on weekends and holidays.  Ms. Robert admitted that she regularly sees Chanel and provides petitioner support for Chanel’s care.  Petitioner also disclosed that she became ill in August 2008 and therefore, Ms. Robert cared for Chanel during September and October 2008. Petitioner admitted she continues to require assistance caring for Chanel but maintained that Chanel would continue to reside with her in the district.

By letter dated October 15, 2008, respondent’s registration office notified petitioner that it had determined that Chanel was not a district resident and would be excluded from respondent’s schools on October 22, 2008. This appeal ensued.  Petitioner’s request for interim relief was granted on October 22, 2008. 

Petitioner maintains that she is Chanel’s court-appointed legal guardian and that Chanel resides with her in the district.  Respondent argues that regardless of the court order of guardianship, Chanel does not actually reside with petitioner, but rather with Ms. Robert.   Respondent maintains that Chanel is not entitled to attend respondent’s schools tuition-free since she is not a district resident.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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 a Student with a Disability, 46 Ed Dept Rep 436, Decision No. 15,556; Appeal of a Student with a Disability, 46 id. 60, Decision No. 15,441; Appeal of D.R., 45 id. 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 a Student with a Disability, 46 Ed Dept Rep 436, Decision No. 15,556; Appeal of a Student with a Disability, 46 id. 60, Decision No. 15,441; Appeal of D.R., 45 id. 550, Decision No. 15,412).

It is undisputed that petitioner is Chanel’s court-appointed legal guardian.  The issue in dispute is whether Chanel actually lives with petitioner.  Respondent relies upon the results of its surveillance as evidence that Chanel does not reside with petitioner.  However,   respondent’s investigation occurred over a short period of time and primarily during the days petitioner admits Chanel’s mother cared for Chanel.  Petitioner explained she became ill in August 2008, which is not disputed, and that Ms. Robert cared for Chanel in September and October 2008.  Although petitioner admits that she continues to require assistance in caring for Chanel, this does not necessarily mean that Chanel resides with Ms. Robert.  Furthermore, both petitioner and Ms. Robert maintain that Chanel will continue to reside with petitioner in the district and that any assistance will be provided at petitioner’s home.  The mere fact that a child continues to maintain a relationship with a parent who otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of C.S. and E.L.S., 48 Ed Dept Rep ____, Decision No. 15,918).  On the record before me, I cannot conclude that Chanel’s continued relationship with her mother is persuasive evidence of non-residency.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeals of Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

In this case, petitioner has met her burden of demonstrating that Chanel is a district resident entitled to attend respondent’s schools tuition-free.  I, therefore find that respondent’s determination of non-residency is based on insufficient evidence and is arbitrary and capricious.

THE APPEAL IS SUSTAINED.

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