Appeal of DAWN ELIZABETH STEWART, on behalf of YUXIA SHI, from action of the Board of Education of the Eastport-South Manor Central School District regarding residency.

Decision No. 17,000

(November 16, 2016)

Law Offices of Thomas M Volz, PLLC, attorneys for respondent, Michael G. Vigliotta, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Eastport-South Manor Central School District (“respondent”) that Yuxia Shi (“the student”) is not a district resident and is therefore not entitled to transportation to a nonpublic school.  The appeal must be dismissed.

According to petitioner, during the 2015-2016 school year, the student attended Bishop McGann-Mercy high school (“nonpublic school”), a nonpublic school in respondent’s district.  During that year, the student lived with petitioner, who received a $1,200 stipend from the student’s parents to attend school in the United States.  According to the record, this arrangement arose from a custody agreement between the student’s parents, petitioner, and Twinn Palms, Inc. (“Twinn Palms”), whereby petitioner agreed to host the student “during the entire tenure” of her enrollment at the school.

On September 28, 2015, petitioner completed a transportation request form requesting that the district transport the student to and from the nonpublic school.  By letter dated October 13, 2015, respondent confirmed receipt of petitioner’s transportation request and indicated that it would hold a hearing on October 22, 2015 concerning her request.  According to the record, on October 22, 2015, a meeting was held pursuant to section 100.2(y) of the Commissioner’s regulations to determine whether the student was a district resident entitled to transportation to the nonpublic school.  Petitioner testified at the meeting regarding the student’s residency and her request for transportation.

By letter dated October 26, 2015, respondent’s assistant superintendent for personnel notified petitioner of the district’s determination that the student was not a resident of the district and therefore was not entitled to transportation to and from the nonpublic school.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 2, 2015.

Petitioner contends that she has custody of the student and that the student currently resides within the district and intends to do so for four years.  Petitioner further asserts that she exercises control over the student, prepares her meals, transports her to and from school, and assists with her shopping and laundry needs.  For relief, petitioner seeks a determination that the student is a resident of the district and is therefore entitled to transportation to and from the nonpublic school.

Respondent contends that the student is not a district resident, and that there has been no permanent and total transfer of custody and control of the student to petitioner.  Respondent further contends that the student is a foreign exchange student and is, thus, not a district resident or entitled to transportation as a matter of law.

With respect to respondent’s argument that the student is a foreign exchange student and is therefore not a district resident, I note that Education Law §§1709(3) and (33), as made applicable to central school districts under Education Law §§1804(1) and 1805, grant boards of education the power to regulate the admission of students, to admit non-resident students and to regulate and establish tuition fees for such nonresident students.  Accordingly, prior Commissioner’s decisions have found that a board of education may prescribe the terms and conditions under which it decides to admit nonresident students, including foreign exchange students (Appeal of Volk, 43 Ed Dept Rep 186, Decision No. 14,964).  Nevertheless, in this case, petitioner contends that she has custody of the student and that the student is a district resident.  The record also indicates that respondent addressed petitioner’s request for transportation by providing her with the opportunity to present evidence concerning the student’s right to transportation to the nonpublic as a resident student.

Pursuant to Education Law §3635(1)(a), a board of education is required to provide transportation to students residing in the district provided the student resides within 15 miles of the nonpublic school in question, as measured by the nearest available route between home and school (Appeal of Pacione, 38 Ed Dept Rep 363, Decision No. 14,055).  With respect to residency, 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).

Where the sole reason the child is residing with someone other than a parent or legal guardian 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).

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).

On the record before me, petitioner has not carried her burden of establishing that there has been a total and permanent transfer of custody and control over the student from her parents to petitioner.  The record contains a copy of a  “custody agreement” dated August 17, 2015, which granted temporary custody of the student to Twinn Palms, “and/or” petitioner “for the duration of the time” the student attends the nonpublic school.[1]  By its terms, the custody agreement is temporary and, thus, does not constitute a total or permanent transfer of custody or control to petitioner.

On appeal, petitioner submits a Non-Parent/Guardian Accepting Custody Affidavit (“Affidavit”) executed by petitioner on October 10, 2015.  The affidavit  indicates that the student will attend “all four years of high school in the United States ... until approximately June 26, 2019 or after ...” and includes two notations: “(possibly longer)” and “[p]ermenent [sic].”  However, petitioner’s assertions as to the student’s future intentions do not negate the plain language of the custody agreement, which, as noted above, limits the custody arrangement to the “duration of the time” the student attends the nonpublic school.  Therefore, petitioner has failed to rebut the presumption that the student lives with her parents outside the district. 

 Moreover, while petitioner asserts that she exercises control over the student’s activities and behavior and provides her with housing and food, she acknowledges that the student is “being supported by her natural parents” and that petitioner receives a $1,200 monthly stipend for this arrangement.  On the totality of the record before me, I cannot conclude that there has been a total, permanent transfer of custody and control of the student to petitioner.  The presumption that the student resides with her parents has not been rebutted and I cannot conclude that respondent’s determination that she is not a district resident entitled to transportation to the nonpublic school is arbitrary, capricious or unreasonable. Thus, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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