Decision No. 16,995
Appeal of KEVIN and KITTY BOOKER, on behalf of their grandchildren KIAN and KOLTON KIMANYEN, from action of the Board of Education of the Malverne Union Free School District regarding residency.
Decision No. 16,995
(November 9, 2016)
The Chandler Law Firm, PLLC, attorneys for petitioners, Monte Malik Chandler, Esq., of counsel
Frazer & Feldman, LLP, attorneys for respondent, Christie R. Jacobson and Joseph Lilly, Esqs., of counsel
ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Malverne Union Free School District (“respondent board”) that their grandchildren are not residents of the district. The appeal must be sustained.
The record indicates that petitioners’ grandchildren have been enrolled in respondent’s schools since at least the 2015-2016 school year. At the time of enrollment, it was represented that the students lived with their mother and petitioners in West Hempstead, New York (“in-district address”). During the 2015-2016 school year, the district conducted an investigation into the residency of Kian and Kolton Kimanyen (“the students”) based on a report from Kolton’s teacher that he may not reside at the in-district address. The investigation included surveillance at the mother’s out-of-district address which was conducted over ten school days, from October 27, 2015 to November 12, 2015. On four days of surveillance, the students were observed coming from the out-of-district address in the morning, before school. Additionally, on five days of surveillance, the students were not observed at the out-of-district address at all, but the mother was observed leaving the out-of-district address alone. During this period, the vehicle used by the students’ mother was observed on all ten days at the out-of-district address.
Based on the investigation, by letter dated November 12, 2015, the assistant superintendent for operations (“assistant superintendent”) notified the students’ mother of the district’s determination that the students were not district residents and stated that they would be excluded from respondent’s schools effective November 19, 2015.
On November 18, 2015, respondent held a residency meeting attended by petitioners, the students’ mother, the assistant superintendent, and the district registrar. At the meeting, petitioners represented that they had custody of the students but did not provide proof of such custody. Based on the evidence and information received at the meeting, the assistant superintendent determined that the students were not residents of the district and that they would be excluded from the district effective November 19, 2015.
By letter dated November 18, 2015, the students’ mother appealed the district’s nonresidency determination to respondent. In her appeal, the students’ mother contended that the students lived with petitioners at the in-district address and that petitioners were the students’ guardians. Attached to the appeal was a temporary guardianship affidavit, signed by the students’ mother and father, purporting to appoint petitioners as the students’ guardians.
Respondent considered and rejected the mother’s appeal at a board meeting held on December 8, 2015. In a written decision on December 9, 2015, respondent stated that there was not a total transfer of custody of the students to petitioners because, according to the guardianship affidavit submitted by the students’ mother, the transfer was temporary. Additionally, respondent deemed it relevant that the guardianship affidavit was executed after the district’s nonresidency determination, which suggested that the guardianship was arranged to circumvent the district’s residency determination. Respondent stated that the students would be excluded from the district’s schools effective December 11, 2015. This appeal ensued. Petitioners’ request for interim relief was denied on January 20, 2016.
Petitioners assert that the students reside with them at the in-district address. Petitioners further claim that they are the legal guardians of the students and that they provide the students with food, shelter and clothing, and exercise control over them. In this respect, petitioners aver that a petition for custody of the students is “currently pending” in Nassau County Family Court. Petitioners request a determination that the students are residents of respondent’s district and are entitled to attend its schools on a tuition-free basis, as well as an award of attorneys’ fees.
Respondent maintains that the students reside with their mother outside the district, and that petitioners filed a petition in Family Court with the sole intention of being appointed guardians of the students so that the students could attend respondent’s schools tuition-free.
I must first address several procedural issues. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Next, I note that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875). Therefore, I lack jurisdiction to entertain petitioners’ claim for attorneys’ fees and/or compensatory damages.
On December 21, 2015, prior to the commencement of this appeal but after the district’s nonresidency determination, petitioners applied to Nassau County Family Court to be appointed as the students’ guardians. On February 25, 2016, Family Court granted orders appointing petitioners guardians of the students until their 18th birthdays, unless the Court approved an application for an extension of the appointment until the age of 21 upon the consent of the students if they were over 18. Thereafter, on March 16, 2016, petitioners requested permission to submit copies of these orders as additional exhibits in this appeal, pursuant to §276.5 of the Commissioner’s regulations. 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).
Petitioners have provided proof of service on respondent, and respondent has not objected to such submission and the consideration of the additional materials. Therefore, to the extent that the submission includes custody orders that were not available at the time petitioners served their petition or reply and are directly related to the claims raised herein, I have accepted them pursuant to the provisions of Commissioner’s regulation §276.5 (Appeal of Lewis, 52 Ed Dept Rep, Decision No. 16,458).
By letter dated September 19, 2016, my Office of Counsel directed respondent, pursuant to §276.5 of the Commissioner’s regulations, to submit an affidavit or affirmation indicating whether the students have been admitted to respondent’s district based on the February 25, 2016 orders. By sur-reply affirmation dated September 23, 2016, respondent stated that the students had been admitted into the district based on the February 25, 2016 orders. Additionally, respondent renewed its original request that the petition be dismissed in its entirety and reaffirmed the defenses and affirmative defenses asserted in its answer. Petitioners object to respondent’s sur-reply, arguing, inter alia, that it is not responsive to my Office of Counsel’s September 19, 2016 letter. I agree with petitioners and decline to consider those portions of respondent's sur-reply that are not responsive to the September 19, 2016 letter.
Turning to the merits, 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).
Two court orders were issued on February 25, 2016 transferring custody of the students to petitioners, who reside within the district. As respondent correctly notes, however, even where there is a valid court order awarding guardianship, to determine residency for school purposes, there must be proof that the student actually lives in the same household with the guardian within the school district (Family Court Act §657[a]; Appeals of G.G., 52 Ed Dept Rep, Decision No. 16,397). In this case, I note that all of respondent’s evidence, including surveillance, predates the court orders. On this record, therefore, I cannot find that the students are not actually living with their guardians since the issuance of the court orders. Respondent is free to conduct a further residency investigation, but absent a determination that the students are not actually living with petitioners as their guardians during the period of the guardianship, the students are entitled to attend respondent’s school tuition-free (see e.g., Appeal of Clemons, 52 Ed Dept Rep, Decision No. 16,407).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent permit the students to attend school in the Malverne Union Free School District without the payment of tuition.
END OF FILE
 Respondent allowed the students to continue attending the district’s schools during the pendency of this appeal, in accordance with district policy.
 In a letter dated February 4, 2016, petitioners submitted temporary orders appointing petitioners as guardians of the students until July 7, 2016. These orders were superseded by the February 25, 2016 orders which I have accepted as additional evidence. Therefore, I need not consider whether to accept the temporary orders as additional evidence pursuant to §276.5 of the Commissioner’s regulations.