Appeal of SAMUEL CLEMONS, JR., on behalf of his niece CRYSTALYNE A.M. HORTON, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 16,407

(August 30, 2012)

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

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that his niece is not a district resident.  The appeal must be sustained.

On September 8, 2011, Crystalyne enrolled in respondent’s high school based on her mother’s representation that they lived with petitioner, Crystalyne’s uncle, in West Hempstead, within respondent’s district (“West Hempstead address”).  In January 2012, the district registrar questioned Crystalyne’s residency after observing her waiting an unreasonable amount of time for a ride home from school each day.

On or about January 4, 2012, the district commenced a residency investigation.  The investigator found that Department of Motor Vehicles records listed Crystalyne’s mother’s address in Hempstead (“Hempstead address”) outside the district.  The investigator conducted surveillance on eight days from January 4 through January 17, 2012.  On three days he observed Crystalyne at the Hempstead address; on two days he observed her at the West Hempstead address.  During this period, the vehicle used by Crystalyne’s mother was observed on five days at the Hempstead address in the early morning hours.

By letter dated January 17, 2012, the district’s director of pupil personnel services (“director”) notified Crystalyne’s mother of the determination that she did not reside within the district.  The January 17, 2012 letter afforded Crystalyne’s mother an opportunity to submit information concerning her residency.  

On January 20, 2012, a residency hearing was held during which Crystalyne‘s mother admitted that she resided outside the district at the Hempstead address and that she had been residing there since September 8, 2011, when she enrolled Crystalyne in respondent’s schools.  Crystalyne’s mother stated that her daughter stays with petitioner during the school week because she is temporarily disabled and that Crystalyne stays with her on occasion “to help her out.”  Crystalyne’s mother indicated that she would not permit her daughter to attend Hempstead High School because the student was “attacked” there and that she would give legal custody of Crystalyne to petitioner to ensure that she could continue to attend respondent’s schools.

Based on the foregoing, the director found that Crystalyne and her mother were not district residents and excluded Crystalyne from the district’s schools, effective January 24, 2012.  By letter dated January 23, 2012, Crystalyne’s mother appealed this determination to respondent.  By letter dated February 15, 2012, respondent sustained the director’s findings and determined that Crystalyne would be excluded from the district’s schools, effective February 17, 2012.

On January 27, 2012, petitioner filed a petition with the Nassau County Family Court requesting appointment as Crystalyne’s legal guardian.  On March 1, 2012, the Family Court issued petitioner a temporary order of guardianship, expiring September 1, 2012.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 19, 2012.  My Office of Counsel also directed petitioner to submit any permanent order of guardianship that might subsequently be issued.

Petitioner contends that Crystalyne intends to reside with him indefinitely and stays with her mother only on weekends and holidays.  Petitioner maintains that Crystalyne’s mother surrendered parental control to him and that he provides Crystalyne with food and shelter and exercises control over her behavior.

Respondent asserts that its residency determination was in all respects proper.  Respondent contends that its decision was based on credible evidence and fully complied with the law and district policy.  Respondent maintains that petitioner sought legal guardianship of Crystalyne for the improper purpose of enabling her to attend its schools tuition-free. 

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).

By letter dated August 2, 2012, petitioner notified my Office of Counsel that the Family Court had issued a permanent order appointing him as Crystalyne’s legal guardian.  Petitioner subsequently served a copy of the order upon respondent and submitted it herein.  The court order is determinative for residency purposes (seeAppeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412).  The guardian and the child must, however, actually live in the same household (Family Court Act §657[a]; Appeals of G.G., 52 Ed Dept Rep, Decision No. 16,397).  Respondent is free to conduct a further residency investigation, but absent a determination that Crystalyne is not actually living with petitioner as her guardian during the period of the guardianship, Crystalyne is entitled to attend respondent’s school tuition-free.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit Crystalyne A.M. Horton to attend school in the Malverne Union Free School District without the payment of tuition. 

END OF FILE.