Appeal of LATIA IRVING, on behalf of NEVAEH E. WILLIAMS, from action of the Board of Education of the Hyde Park Central School District regarding residency.

Decision No. 16,854

(December 29, 2015)

Thomas, Drohan, Waxman, Pettigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Hyde Park Central School District (“respondent”) that her daughter, Nevaeh, is not a district resident.  The appeal must be dismissed.

Petitioner resides in Marietta, Georgia.  In January 2013, petitioner sent her daughter, Nevaeh, to live with the student’s aunt, Jaleesa Irving (“Ms. Irving”), in respondent’s district.  Ms. Irving completed registration forms to enroll Nevaeh in the district.  The information submitted on the forms states that petitioner retained legal custody of Nevaeh, who was living with Ms. Irving due to petitioner’s financial situation.  As part of the registration process, petitioner submitted a parent affidavit stating that Nevaeh was temporarily residing with her aunt and grandmother until the end of the school year and that petitioner took “full responsibility [for the student’s] education and medical care.”  The custodial affidavit completed by the student’s aunt stated that petitioner was paying for food, clothing and other necessities.  Petitioner also stated that she was not relinquishing full custody of Nevaeh.  Upon review of the registration information, respondent determined that Nevaeh was not a district resident and was not entitled to attend school in the district on a tuition-free basis.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner now asserts in her petition that she has transferred custody and control of Nevaeh to the student’s aunt, Ms. Irving, and seeks an order that Nevaeh is a district resident entitled to attend the district’s schools tuition-free.  Respondent asserts that the appeal is untimely and that its residency determination was, in all respect, proper.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The record indicates that respondent’s determination was issued on January 24, 2013.  Petitioner did not commence the appeal until March 6, 2013, outside the required time period.

Even if the appeal were not dismissed as untimely, it would also be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part, as follows:

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).  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, 48 Ed 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, 48 id. 142, Decision No. 15,820).

Although petitioner asserts in this appeal that she has transferred total custody and control to Nevaeh’s aunt, petitioner provides no documentation in support of her conclusory assertion.  Indeed, I note that she – not the student’s aunt - is the petitioner in this appeal, which she brings on Nevaeh’s behalf.  This belies her assertion that custody and control has been transferred. 

Further, all of the information that petitioner provided respondent when attempting to enroll Nevaeh in the district indicates that she was not transferring custody and control to the student’s aunt.  Indeed, petitioner stated then that she was providing support to Nevaeh and that the arrangement was temporary.

On this record, I cannot conclude that respondent’s residency determination was arbitrary, capricious or unreasonable.

THE APPEAL IS DISMISSED.

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