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Decision No. 16,933

Appeal of ELMA FOSKEY, on behalf of her grandchildren TRA’DELL and LATYCE FAISON, from action of the Board of Education of the Enlarged City School District of the City of Troy regarding residency.

Decision No. 16,933

(July 28, 2016)

Guercio and Guercio, LLP, attorneys for respondent, Kathy A. Ahearn, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Troy (“respondent”) that her grandchildren, Tra’Dell and Latyce Faison, are not district residents.  The appeal must be sustained.

Petitioner resides in Troy, New York, within respondent’s district.  Shenise Foskey (“Ms. Foskey”), who is petitioner’s daughter and the children’s mother, resides in Cohoes, New York, outside respondent’s district.  The record indicates that Jermaine Faison (“Mr. Faison”), the children’s father, does not have a permanent address but uses Ms. Foskey’s Cohoes address.

A Family Court order dated September 17, 2013 was submitted with the petition which ordered that petitioner, Ms. Foskey and Mr. Faison share joint legal custody of Tra’Dell and Latyce, with petitioner having primary physical custody of the children and Ms. Foskey and Mr. Faison having “parenting time.”

The record indicates that Latyce and Tra’Dell began attending the district’s schools in the 2013-2014 and 2014-2015 school years, respectively.  In October 2015, according to respondent, “the [d]istrict received a ‘tip’ from a parent ... that the [s]tudents actually lived in Cohoes, based upon her having picked up her son from the [s]tudents’ ‘home’ there on several occasions.”

On January 20, 2016, a residency meeting was held to provide an opportunity to submit evidence concerning the children’s residency and was attended by petitioner and Ms. Foskey.

By letter dated January 22, 2016, the individual designated by respondent to conduct residency proceedings (“district’s designee”) advised petitioner of the district’s determination that Tra’Dell and Latyce do not reside in the district, are not entitled to attend the district’s schools tuition-free and would be excluded from attendance after February 1, 2016.

This appeal ensued.  Petitioner’s request for interim relief was granted on February 5, 2016.

Petitioner contends that Tra’Dell and Latyce reside with her in the district, have done so since September 2013, and that they intend to reside with her permanently. Petitioner states that the children began living with her “because of the school they were going to” and they also “had no where [sic] else to go after school while [their] mother ... worked.”  Petitioner also states that the children’s mother has contact with them on a daily basis.  Petitioner seeks a determination that Tra’Dell and Latyce are district residents entitled to attend school in the district without payment of tuition.

Respondent asserts, inter alia, that petitioner has failed to state a claim against respondent and that respondent’s residency determination is rational, reasonable and consistent with law.  Respondent further contends that petitioner has failed to rebut the presumption that the children live with their mother outside the district and that the shared custody arrangement is a “sham” obtained only to resolve after-school child care issues and take advantage of the district’s schools.  Respondent also argues that the children are not physically present in the district and do not intend to actually reside there, and thus, are not district residents.  Respondent requests that the petition be dismissed.

With respect to the children’s physical presence, in an affidavit provided by the district’s designee, respondent contends that petitioner has not produced a lease showing that the children, or even she, actually live in Troy.  The district designee’s affidavit also credits a statement by the district’s school resource officer, “who was also employed by the Troy Housing Authority as a security guard,” that petitioner has lived alone at the Troy address for over ten years.[1]  The affidavit also states that Ms. Foskey admits to driving Tra’Dell to school in the morning and that a parent of Tra’Dell’s friend told the district that she has picked up her son “from Tra’Dell’s house in Cohoes” after having had play dates there.  The affidavit further states that petitioner conceded that the children “keep many of their possessions and clothes at their mother’s home” as well as “sleep there on school vacations and weekends and on some holidays” (emphasis added).

The affidavit provided by the district’s designee states that there is no evidence indicating that the children intend to permanently reside in Troy because “the [s]tudents appear to spend most non-school nights at their mother’s home in Cohoes” (emphasis added) and “the ‘living’ arrangement appears to be a temporary measure...” due to petitioner’s statements made in a custodian affidavit and elsewhere, that the children live with her because of their mother’s “work-schedule” and they have nowhere “to physically go after school.”

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).

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).

In this case, the court order clearly awards primary physical custody of both children to petitioner, in addition to shared legal custody.  As noted above, the court order is determinative for residency purposes (see Appeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412).  The initial presumption that the children’s residence is that of their parents no longer applies because the court order has abrogated that presumption.  The children are now presumed to reside with petitioner, provided that petitioner and the children actually live in the same household (Family Court Act §657[a]; Appeal of G.G., 52 Ed Dept Rep, Decision No. 16,397).

In the instant case, the parties dispute whether the students actually live with petitioner (cf. Appeal of Martinez, 52 Ed Dept Rep, Decision No. 16,396; Appeal of Naab, 48 id. 484, Decision No. 15,924).  Petitioner asserts that the children are living with her and intend to do so permanently.  On this record, I find that the evidence submitted by respondent as to where the children reside is not inconsistent with petitioner’s claim that the children live with her.  Nor do I find respondent’s evidence at odds with the custody order that provides for primary physical custody by petitioner and shared legal custody by petitioner and the children’s parents (see Appeal of Lewis, 52 Ed Dept Rep, Decision No. 16,458; Appeal of Ayers, 46 id. 13, Decision No. 15,425).  The fact that the children have friends over to play and keep belongings at their mother’s home outside the district, are not determinative given the shared legal custody arrangement with parenting time for Ms. Foskey, and thus do not refute petitioner’s claim that the children’s physical residence is with her in accordance with the court order.

The fact that a parent, as in this case, maintains a relationship with the child or retains some visitation or other rights does not negate the child’s residence with the court-ordered custodian or guardian (Appeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412).  Indeed, I find that the statements cited by respondent that the children appear to spend most “non-school” nights at their mother’s home in Cohoes, and that “they sleep there on school vacations and weekends and on some holidays” are not sufficient to rebut petitioner’s claims that the children reside with her.  The children’s relationship with their mother through “parenting time” or involvement in their education or visitation is not determinative where the children reside with petitioner (see Appeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412).

Furthermore, petitioner provides an explanation for respondent’s evidence that Ms. Foskey drives Tra’Dell to school in the morning, stating in the custodian affidavit that he is “cranky” and “does not want to get out of bed,” noting also that Tra’Dell takes the bus from school in the afternoon.  With respect to the statement of the district’s school resource officer, cited by respondent, that petitioner “has lived alone at the Troy address for over ten (10) years,” I find that this evidence is not persuasive because it lacks specificity as to frequency, time, and place of the observations made by the school resource officer.  Likewise, the fact that petitioner has not submitted a lease listing the children as occupants does not necessarily prove or disprove their physical presence at petitioner’s residence (see e.g., Appeal of Alvarez, 54 Ed Dept Rep, Decision No. 16,661).

Here, petitioner asserts that the children are living with her and I find that respondent’s evidence is insufficient to overcome the presumption that the children reside with petitioner.  Accordingly, based upon the record before me, I am constrained to find that Tra’Dell and Latyce Faison are residents of respondent’s school district for the purposes of attending school tuition-free.  Although the evidence from both parties is not overwhelming, on this record, I find that respondent failed to adequately support its residency determination and that petitioner has met her burden of proof.

If respondent remains concerned that the children do not reside in the district, it may collect further evidence through surveillance, a home visit, or other means such as affidavits (see e.g., Appeal of L.B. and T.B., 55 Ed Dept Rep, Decision No. 16,832; Appeal of Vincent, 54 Ed Dept Rep, Decision No. 16,724).  While respondent is free to investigate further whether the children continue to live with petitioner, in the interim, it must admit the children to its schools (see Appeal of Lewis, 52 Ed Dept Rep, Decision No. 16,458).

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Tra’Dell and Latyce Faison to attend school in the City School District of the City of Troy without the payment of tuition.

END OF FILE

 

[1] No further information is provided regarding this statement, such as whether it is based on personal observation or whether it encompasses the time period at issue in this appeal, for example.