* Subsequent History: Matter of Gill v Board of Educ. of Williamsville Cent. School Dist.; Supreme Court, Erie County; Decision and Order dismissed petition to review; dated August 15, 2013. *

Appeal of G.G., on behalf of her granddaughter N.G., from action of the Board of Education of the Williamsville Central School District regarding residency.

Appeal of G.G., on behalf of her granddaughter P.G., from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 16,397

(August 30, 2012)

Charles J. Gallagher, Esq., attorney for petitioner

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

KING, JR., Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the Williamsville Central School District (“respondent”) that her granddaughters, N.G. and P.G., are not residents of the district.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

During the 2011-2012 school year, N.G. was a twelfth grade student at the district’s North High School and P.G. was an eighth grade student at the district’s Casey Middle School.  The district’s coordinator of student services (“coordinator”) states in an affidavit that on January 11, 2012, P.G.’s father submitted a request for P.G. to attend the district’s North High School for the upcoming 2012-2013 school year.  On the request form, he listed as their residence an address in Clarence Center and Clarence High School as P.G.’s attendance area high school.  Because that address and Clarence High School are located in the Clarence Central School District, outside the district, the coordinator commenced a residency investigation of both students.

By letter dated February 9, 2012, the coordinator requested that N.G. and P.G.’s parents submit proof by February 22, 2012 that their current primary residence continued to be in the district.  The letter was addressed to the parents at a district address in Amherst, the family address on file at that time.  The parents submitted no documents in response.  Accordingly, by letter dated February 28, 2012, the coordinator determined that the family did not maintain their residence in the district and, therefore, N.G. and P.G. would be excluded from attending the district’s schools as of March 19, 2012.  The determination was based on:  the school request form submitted for P.G.; N.G.’s college entrance exam applications in September and October, 2011, on which she had listed the Clarence Center address; and real estate property information that the parents had sold their residence in Amherst on April 15, 2011 and purchased the Clarence Center residence on November 10, 2011.  The coordinator avers that the parents had never informed the district of the sale and purchase of their homes and the subsequent address change.

On March 13, 2012, petitioner submitted separate petitions for guardianship of N.G. and P.G. to Family Court in Erie County.  On March 15, 2012, the court issued two separate orders granting petitioner guardianship of N.G. and P.G. and directing that they were to reside with petitioner at her home in Williamsville, in the district.[1]

The coordinator avers that even after petitioner was appointed as guardian, the mother’s phone number was listed on a late note for P.G.,[2] and the mother also signed an athletic eligibility form for P.G. dated March 19, 2012.  The coordinator advised the parents that the district could not accept forms signed by them.  She also notes that, because petitioner’s address was located in the attendance zone for the district’s East High School and Transit Middle School, she knew that there would be no district transportation provided for the students to their current schools, North High School and Casey Middle School.  Based on these factors, the coordinator commenced a new residency investigation by hiring an investigation firm.

The surveillance reports indicated that neither student appeared to reside with petitioner in the district, but rather, that both were living with their parents in Clarence Center.  The investigators observed both students leaving the Clarence Center residence on several mornings and the cars in which they traveled were observed there on two evenings and a Sunday.   Specifically, the investigators observed N.G. driving herself to school from that address, and P.G. being driven to school from there in a car registered to her father.  Thereafter, by letter dated May 9, 2012, the coordinator requested that petitioner submit information no later than May 18, 2012, demonstrating that she continued to maintain guardianship for N.G. and P.G. and that they resided with her at her district residence on a nightly basis.  It appears that petitioner did not submit any documents in response.  By letter dated May 21, 2012, the coordinator determined, based on the previously submitted late note and athletic eligibility form and information obtained by the district, including the surveillance report, that N.G. and P.G. were not district residents and would be excluded from attending the district’s schools as of June 4, 2012.  These appeals ensued.  Petitioner’s requests for interim relief were granted on June 6, 2012.

Petitioner asserts that she is the legal guardian of both N.G. and P.G and that they reside with her.  While she admits that each child spends time with her parents and has daily contact with them, she maintains that they do not reside with their parents.  She seeks a determination that N.G. and P.G. are district residents and entitled to attend school in the district without the payment of tuition.

Respondent contends that petitioner has failed to establish a clear legal right to the relief requested, the facts upon which she seeks relief or that there has been a total, and presumably permanent, transfer of custody and control to her.  It asserts that regardless of the court order, N.G. and P.G. do not actually reside with petitioner, but rather reside with their parents.  It maintains that the surveillance contradicts the guardianship order, that its decision was neither arbitrary nor capricious and that it acted lawfully and in good faith.  Respondent also contends that the petition fails to comply with §275.3 of the Commissioner’s regulations, and that N.G. and P.G.’s parents committed acts of fraud and deceit.

I must first address a procedural issue.  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).  The petition indicates that N.G. intended to graduate from high school in June 2012.  Pursuant to a request from my Office of Counsel, respondent confirmed that N.G. graduated on June 24, 2012.  Accordingly, her residency is no longer at issue and the appeal regarding N.G. must be dismissed as moot.

Turning to the merits, 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).

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of Dennis, 47 id. 327, Decision No. 15,712).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of A Student with a Disability, 47 Ed Dept Rep 142, Decision No. 15,652).

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 bona fide (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).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Respondent concedes that there is a valid court order awarding guardianship of P.G. to petitioner.  However, it contends that P.G. does not actually live with petitioner, and, therefore, it is entitled to examine her residency (see Appeal of Perry, 49 Ed Dept Rep 190, Decision No. 15,995).

Even where there is a valid court order awarding guardianship, to determine residency for school purposes there must be proof that the student actually lives in the same household with the guardian within the school district (see Family Court Act §657[a];[3] Appeal of Perry, 49 Ed Dept Rep 190, Decision No. 15,995).  In this case, petitioner has failed to meet her burden of establishing that P.G. actually resides with her in the district.  Although she states in the petition that she supports P.G. and provides food, shelter and clothing for her, she submitted no evidence to substantiate her claims or to respond to respondent’s surveillance evidence.  As noted above, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of A Student with a Disability, 47 Ed Dept Rep 142, Decision No. 15,652).  However, in this case, I find that respondent’s evidence concerning P.G.’s residency outside the district is persuasive.  The surveillance was conducted on six dates between April 2 and 26, 2012.  On four school mornings, an investigator observed P.G. leave the Clarence Center residence with an adult female in a white car registered to P.G.’s father and being driven to the middle school.  On two weekday evenings and one Sunday afternoon, that car was observed in the driveway of the Clarence Center residence.  Although surveillance was conducted at petitioner’s address on only one day on March 29, 2012, P.G. was not observed there.  In addition to the surveillance, after the court order, the parents, not petitioner, submitted a document to respondent on P.G.’s behalf and used the mother’s cell phone as the contact number on another document on file with respondent.

Accordingly, on the record before me, I find that respondent’s determination that P.G. is not a district resident was neither arbitrary nor capricious and must be upheld.

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

While the appeal must be dismissed, I note that petitioner may reapply to the district for admission on P.G.’s behalf at any time and may present for respondent’s consideration any new information bearing on the question of residence.

THE APPEALS ARE DISMISSED.

END OF FILE