Appeal of TONY SCHILLACI, on behalf of PETER BOKOR, from action of the Board of Education of the Brighton Central School District regarding residency.

Decision No. 16,570

(October 28, 2013)

Harris Beach, PLLC, attorneys for respondent, Douglas E. Gerhardt, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Brighton Central School District (“respondent”) that a family friend, Peter Bokor, is not a district resident. The appeal must be dismissed.

Prior to December 2012, Peter lived with his parents in Budapest, Hungary. On December 31, 2012, Peter came to live with petitioner, a family friend, in Brighton. On January 3, 2013, petitioner, Peter and Peter’s father went to the district registrar’s office to register Peter in respondent’s district. On January 8, 2013, petitioner received a telephone call from the registrar denying petitioner’s request to enroll Peter. By letter of the same date, Peter’s father was notified that Peter was not a resident of respondent’s district because his parents resided in Budapest, Hungary and they had not transferred complete and permanent custody and control of Peter to petitioner.

By letter dated January 8, 2013, petitioner requested an explanation for respondent’s decision not to enroll Peter.

By letter dated January 9, 2013, petitioner was advised that respondent would interact only with Peter’s father regarding its residency determination because petitioner lacked a familial or legal relationship with Peter.

By letter dated January 14, 2013, Peter’s father notified respondent that he would provide supplemental documentation giving petitioner custody and control over Peter, and authorizing respondent to communicate directly with petitioner regarding Peter’s residency.

By letter dated January 17, 2013, petitioner provided supplemental documentation in support of Peter’s residency and advised respondent that he had obtained complete

custody and control over Peter. Petitioner provided a designation of person in parental relationship pursuant to New York State General Obligations Law §5-1551 and a designation of a person in parental relation by parent for purposes of educational decisions.

Subsequently, by undated letter to Peter’s father, copied to petitioner, respondent’s superintendent indicated that respondent’s January 8, 2013 determination denying Peter’s residency status remained in effect and that this determination could be appealed to the Commissioner of Education.

By letter dated January 31, 2013, petitioner again unsuccessfully attempted to convince respondent that Peter was entitled to attend district schools. This appeal ensued. Petitioner’s request for interim relief was denied on February 15, 2013.

Petitioner alleges that Peter, a United States citizen, intends to reside permanently with him and that he is the person in parental relationship supporting Peter.

Respondent contends that petitioner lacks standing to bring this appeal and that the appeal must be dismissed for failure to join Peter’s parents as necessary parties. Respondent states that Peter’s residence remains in Budapest, Hungary with his parents. Respondent contends that there has not been a total and permanent transfer of custody and control from Peter’s parents to petitioner and that the sole reason Peter is residing with petitioner is to obtain an education in the United States.

Initially, I must address the procedural issues. Respondent argues that petitioner lacks standing to maintain this appeal. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights(Appeal of Waechter, 48 Ed Dept Rep 261, Decision No.15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal(Appeal of Waechter, 48 Ed Dept Rep 261, Decision No.15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). In this case, petitioner is a resident of respondent’s school district. A child residing in his household for whom the presumption of parental residence has been rebutted may attend respondent’s schools tuition-free. Petitioner alleges that Peter’s father has transferred parental control of Peter to him and requests 2

that Peter be enrolled in respondent’s district. I therefore find that petitioner has standing to challenge respondent’s actions (see Appeal of a Student With a Disability, 47 Ed Dept Rep 142, Decision No. 15,652; Appeal of Riccinto, 46 id. 39, Decision No. 15,435; Appeal of Beska, 39 id. 662, Decision No. 14,344).

Respondent also argues that the appeal should be dismissed for failure to join Peter’s parents as necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No.15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917;Appeal of Williams, 48 id. 343, Decision No. 15,879). The record in this appeal contains evidence clearly indicating that Peter’s father supports petitioner’s appeal. It is evident that his desire is to have Peter attend school in respondent’s district and therefore his rights would not be adversely affected by a determination in petitioner’s favor(see Appeal of Riccinto, 46 Ed Dept Rep 39, Decision No.15,435).

Nevertheless, the appeal must be dismissed on 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 §3202is established by one’s physical presence as an inhabitantwithin 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 Rep490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48Ed Dept Rep 490, Decision No. 15,927). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48id. 142, Decision No. 15,820).

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).

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 Rep295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In this appeal, petitioner has not carried his burden of proof. Petitioner has submitted several documents to support his claim that custody has been transferred, including the district’s registration form, student residency questionnaire, residency statement, consular report of birth abroad for Peter, lease agreement listing Peter as an “authorized occupant” of petitioner’s apartment, and a child guardian consent form. However, none of these documents establish that Peter’s parents transferred permanent and total custody and control of Peter to petitioner. In fact, in the “Affidavit of Non-Resident Natural Parent,” Peter’s father answered “No” to the question of whether parental custody and control has been legally transferred to the custodial parent, and “Yes” to the question of whether he expected to “take back parental custody and control,” and stated that he would do so after Peter finishes high school. Peter’s father also stated that he would provide $3,000 per month in financial support for Peter and that while petitioner, the “custodial parent,” would provide Peter with food, clothing and other necessities, he would not be providing financial support for Peter.

As noted above, the record also contains a copy of a “Designation of Person in Parental Relationship” pursuant to General Obligations Law §5-1551. The designation form states that Peter’s father is “temporarily entrusting” petitioner with the care of Peter and that “New York law allows this to be granted for six months at a time. Parents intend to renew every six months.” While petitioner contends that this document supports his claim of custody and control over Peter, I note that General Obligations Law §5-1555(3) provides: “A designation shall not cause a change in the school district of residence of the child for purposes of the education law, and during the

period of validity of the designation, the child shall be presumed to be a resident of the school district in which the parent resided at the time the designation was made”(General Obligations Law §5-1555[3] [emphasis added]). Therefore, the designation does not change the fact that Peter’s residence for attendance purposes is in Budapest, Hungary with his parents, and not in respondent’s district with petitioner.

While petitioner has submitted documentation indicating a temporary designation of petitioner as a “person in parental relation,” I cannot find on this record that petitioner has demonstrated the necessary permanent and total transfer of custody. Contrary to his contention that the documents provided “clearly do transfer legal custody,” petitioner has failed to establish that there has been a total and permanent transfer of custody and control of Peter to him and therefore has not rebutted the presumption that Peter’s residence is with his parents in Hungary.

Finally, I note that petitioner’s reliance on Matter of Moncrieffe (121 Misc2d 395) (“Moncrieffe”) is misplaced. Moncrieffe involved a school district’s objection to an application for guardianship over a U.S. citizen student whose father was deceased and whose mother was a Jamaican citizen living in Jamaica. In that case, the school district argued that the student’s attempt to establish residency was solely for educational purposes. The court disagreed, finding that the student, who was not a Jamaican citizen, could not be denied residency in the district “merely because his parent is a nonresident alien.” Under those circumstances, the court found, the student “has no other residence available to him” and “should not be relegated to ... a position of non status for educational purposes where he finds himself within respondent’s school district solely as a result of circumstances not of his doing nor as the result of design or planning relative to which respondent should be heard to complain.”

Previous Commissioner’s decisions have cited Moncrieffe for the proposition that, where there are overriding reasons for establishing one’s residence apartfrom one’s parents, aside from taking advantage of the educational programs of the district, and all the indicia of residency have been met, the fact that the choice of residence incidentally affords the student the opportunity to attend a certain school is not determinative (See e.g., Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208). 6

However, the record in the instant appeal is factually distinguishable from Moncrieffe and indicates that Peter is staying with petitioner for the sole purpose of attending respondent’s schools. Although petitioner argues that the intent was for Peter to attend school in the United States, rather than to attend any particular school district, the record indicates that he is staying with petitioner to attend his school district tuition-free. Therefore, on this record the presumption of parental residence has not been rebutted, and Peter’s legal residence is with his parents in Hungary (see Appeal of Brunot, 35 Ed Dept Rep402, Decision No. 13,584). I find no basis upon which to set aside respondent’s determination.

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

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on Peter’s behalf at any time, should circumstances change, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED. END OF FILE