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Decision No. 16,458

Appeal of SUSAN LEWIS, on behalf of her grandson NY-QUEL FIELDS, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 16,458

(March 25, 2013)

Kehl, Katzive & Simon, LLP, attorneys for respondent,Jeffrey A. Kehl, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that her grandson, Ny-Quel, is not a district resident. The appeal must be sustained.

On or about September 7, 2011, Ny-Quel enrolled in respondent’s schools based on his mother’s representation that they both resided with petitioner, Ny-Quel’s grandmother, in New Rochelle, within respondent’s district. There is no dispute that petitioner resides in the district.

In November 2012, the district received information that Ny-Quel was residing in Mount Vernon, outside the district. Subsequently, the district’s director of pupil services (“director”) commenced an investigation of Ny­Quel’s residency.

By letter dated November 20, 2012, the director notified petitioner that her residency was in question and provided her an opportunity to submit residency information by December 4, 2012. 1   According to the director, no information was submitted.

By letter dated January 3, 2013, the director advised petitioner of her determination that petitioner was not a district resident and that Ny-Quel, therefore, was not entitled to attend its schools and would be excluded after January 19, 2013.  2

On January 15, 2013, petitioner filed two petitions, one against Ny-Quel’s mother and the other against his father, with the Westchester County Family Court (“court”)seeking custody of Ny-Quel. This appeal ensued. Petitioner’s request for interim relief was denied on January 24, 2013.

Petitioner contends that Ny-Quel has resided with her since September 2011 and he intends to reside with her for four years. Petitioner states that Ny-Quel’s mother resides in Mount Vernon and his father resides in New Rochelle. Petitioner maintains that Ny-Quel’s parents allowed him to move to petitioner’s home in New Rochelle because it is in a better school district. Petitioner also asserts that Ny-Quel’s parents are in contact with him on adaily basis and that they see him every weekend. However, in her custody petitions to the court, petitioner asserted that she was seeking custody of Ny-Quel because his parents were unable to care for him, due to their work schedules.

Respondent asserts, inter alia, that its residency determination was in all respects proper. Respondent further contends that the petitions for custody were made solely to take advantage of the schools in respondent’s district and that the petitions were submitted to the court only after the district made its adverse residency determination.

By letter dated March 8, 2013, respondent’s counsel notified my Office of Counsel, that on or about March 7, 2013, the district received a final court order granting joint custody of Ny-Quel to petitioner and his parents with physical custody granted to petitioner. Respondent’s counsel submitted a copy of the order, dated February 26,2013, to my Office of Counsel. By letter received on March15, 2013, petitioner also submitted a copy of the order.

I must first address a procedural issue. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405,Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal(Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No.15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). In this case, the custody order was not available at the time petitioner commenced the instant appeal and is relevant to the claims raised herein.

Therefore, I will accept the copy of this order, submitted by both parties, for consideration.

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, 48Ed 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).

In the instant appeal, the court order clearly awards joint custody of Ny-Quel to petitioner and his parents and grants physical custody to petitioner. Accordingly, I will not look behind the order, but respect it as dispositive for residency purposes (see Appeal of Martinez, 52 Ed Dept Rep, Decision No. 16,396; Appeal of Naab, 48 id. 484,Decision No. 15,924). Petitioner asserts that Ny-Quel is living with petitioner, and while respondent is free to investigate whether Ny-Quel is actually continuing to live with petitioner since the custody order was issued, in the interim it must admit Ny-Quel to its schools.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit Ny-Quel Fields to attend school in the City School District of the City of New Rochelle without the payment of tuition.

END OF FILE.

 

 

 

 

[1]   It appears that the director inadvertently addressed this letter to petitioner, instead of Ny-Quel’s mother, because the letter alleges that it received information that indicated that petitioner might not be a district resident. However, petitioner’s residency is not in dispute in this appeal. The letter also incorrectly refers to Ny-Quelas petitioner’s child, instead of as her grandchild.

[2]   Similar to the November 20, 2012 letter, it appears that the director inadvertently addressed this letter to petitioner, instead of Ny-Quel’s mother.