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Decision No. 16,296

Appeal of CARRIE ALBANY, on behalf of her granddaughter BIANCA BATHEA-BECKETT, from action of the Great Neck Union Free School District regarding residency.

Decision No. 16,296

(August 29, 2011)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Great Neck Union Free School District (“respondent”) that her granddaughter, Bianca, is not a district resident entitled to attend school in the district without the payment of tuition.  The appeal must be dismissed.

On July 16, 2010, Bianca’s parents registered her for 9th grade at the district’s South High School.  On various district forms, they and petitioner all asserted that they resided together at petitioner’s home on Spinney Hill Drive in the district with Bianca.

Despite some inconsistent information on the forms and obtained from the mother, including that her younger child attended first grade in Queens and would continue to attend school there, Bianca was permitted to enroll.  After an inconclusive home visit on September 20, 2010, the district commenced an investigation.  The investigation report revealed that the mother’s vehicle was registered to an address in Queens and the father’s vehicle was registered to an address in Freeport, both outside the district.  Surveillance conducted over six weeks between September 27 and November 1, 2010 revealed, among other things, that neither of the parents was ever seen at the district address but Bianca was seen there on three mornings.

By letter dated November 4, 2010, the district’s registrar notified the parents that Bianca was not a legal district resident and thus not entitled to attend the district’s schools, and offered them the opportunity to present evidence of their residence by November 15, 2010, after which Bianca would be excluded from school.  A residency meeting was held on November 12, 2010, which both parents attended.  By letter dated November 15, 2010, the registrar notified the parents that Bianca was not a district resident and would be excluded from school after November 24, 2010.  By letter dated November 23, 2010, the mother appealed to respondent, stating that Bianca lived with petitioner.  She also submitted a separate notarized letter granting temporary guardianship of Bianca to petitioner until further notice, stating that petitioner would be responsible for Bianca’s daily supervision, including educational, emergency and medical/dental decisions, but that she, the mother, would meet all Bianca’s financial needs.  At its meeting on December 13, 2010, respondent denied petitioner’s appeal.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 25, 2011.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; 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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).

Prior to initiating an appeal of respondent’s determination, the mother submitted to the high school principal a notarized “Child Care Authorization” form, dated December 21, 2010, granting petitioner the authority to take temporary care of Bianca from September 1, 2010 until the mother terminates the arrangement.  In addition, on December 23, 2010, petitioner initiated a proceeding in Family Court, Nassau County, for custody of Bianca.  By letter dated December 23, 2010, the registrar acknowledged receipt of those documents and informed the parents that the documents did not alter the district’s determination of nonresidency.

On January 4, 2011[1], petitioner initiated a proceeding, also in Family Court, Nassau County, for her appointment as guardian for Bianca.  Subsequently, on May 3, 2011, the Court granted a temporary order of guardianship of Bianca to petitioner, which is valid until November 3, 2011.[2]  Respondent has informed my Office of Counsel that it has admitted Bianca to the district’s schools for the duration of the court order.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

Subsequent events have rendered moot the circumstances of this case.  Specifically, a valid court order has been issued transferring guardianship of Bianca to petitioner, albeit on a temporary basis, and respondent has readmitted Bianca to the schools of the district.  Thus, while the court order is in effect, I find that Bianca’s residency is in the district.  Therefore, no meaningful relief may be granted and the appeal must be dismissed as moot.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Respondent states that the proceeding was initiated December 4, 2010.  The copy of the Guardianship Petition attached to the petition and as Exhibit K to respondent’s affirmation and answer was signed and verified on January 4, 2011.

[2] Family Court of the State of New York, County of Nassau, File #567973, Docket #G-00089-11, Order dated May 3, 2011, Honorable Hope Schwartz Zimmerman.  Although respondent refers to an earlier order issued on February 1, 2011, and a pending hearing on February 22, 2011, which was then deferred to March 30, 2010 [sic], it fails to provide this or any other court documents in the record.  In any event, such order would be superseded by the May 3, 2011 order.