Decision No. 17,389
Appeal of DONNA SQUILLACE, on behalf of her son ROBERT BENJAMIN SQUILLACE, from action of the Board of Education and Superintendent of the Harborfields Central School District and Robert Anthony Squillace regarding residency.
Decision No. 17,389
(May 14, 2018)
Guercio & Guercio LLP, attorneys for respondent Board of Education and Superintendent of the Harborfields Central School District, John P. Sheahan, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals from a determination of the Board of Education and Superintendent (“superintendent”) of the Harborfields Central School District (collectively “respondents”) concerning her son’s (the “student”) entitlement to transportation to a nonpublic school as a district resident. Petitioner has also joined the student’s father, Robert Anthony Squillace (the “student’s father”). The appeal must be dismissed.
Petitioner’s dispute with respondents was the subject of Appeal of Squillace, 57 Ed Dept Rep, Decision No. 17,385. The facts which gave rise to this dispute were set forth in that appeal and need not be set forth in detail here. Briefly, prior to their separation in 2014, petitioner and the student’s father lived with the student within the Harborfields Central School District (the “district”). After separating, the student’s father remained within respondents’ district, and petitioner moved to a location within the City School District of the City of Glen Cove. In accordance with a stipulation of settlement, the student lives with petitioner and his father on a weekly rotational basis.
On February 23, 2015, the student’s father requested that respondents provide the student with transportation to a nonpublic school in the 2015-2016 school year. In an undated letter, the district's transportation coordinator confirmed that the district would provide the requested transportation.
In a letter to the superintendent dated March 12, 2015, petitioner indicated that she did not consent to the district providing transportation to the student for the upcoming school year and requested that the district discontinue such transportation. Petitioner alleged that there had been “a CHANGE in residence AND a custody agreement” since 2014, and that respondents had no legal basis to provide transportation to the student.
In a letter dated March 17, 2015, the superintendent stated that she had reviewed the stipulation of settlement, but that it did not affect the district’s determination that the student was entitled to transportation as a district resident. Specifically, the superintendent reasoned that a student may have only one legal residence; that the student had not abandoned his residence; and that the district could not accede to petitioner’s request given the fact that petitioner and the student’s father had not designated either the Glen Cove City School District or respondents’ district as the student’s district of residence. The superintendent recommended that petitioner seek assistance from Family Court and further indicated that the district would abide by any residency decision issued by the court. This appeal ensued.
Petitioner contends that respondents improperly agreed to provide transportation to the student because “parents must [both] agree as to which district will be considered the residential district for the child,” and she did not agree to so designate respondents’ district “given the custody settlement providing for two legal residences.” Petitioner asserts that allowing Harborfields to transport the student “is ... giving one party - the father - an advantage he is not entitled to.” Petitioner seeks a determination that the student is not a resident of respondents’ district; a “finding that there is a change in [the student’s] legal and physical residence”; a finding that she and the student’s father do not agree as to which district to designate; and “damages” occasioned by respondents’ provision of transportation to the student to and from the father’s residence.
Respondents contend that the appeal fails to state a claim upon which relief may be granted. Respondents further assert that petitioner’s claims concerning the interpretation of the stipulation of settlement and alleged monetary damages are outside the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310.
The student’s father contends that he and the student are residents of respondents’ district, and that its determination in this regard was reasonable and should be upheld.
There is one procedural issue I must address. To the extent petitioner is challenging respondents’ refusal to provide transportation to her son as a resident student on alternating weeks in the 2015-2016 school year, the appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937). In this appeal, petitioner is challenging respondents’ determination that the student, as a district resident, is entitled to transportation to the nonpublic school he attends in the 2015-2016 school year. The 2015-2016 school year has ended and, on this record, there is no basis for determining if petitioner’s son would be entitled to transportation to the nonpublic school he attends for any subsequent school year. Not only is there no evidence in the record concerning petitioner’s living arrangement in any subsequent school year or the status of the court-ordered stipulation which provided for joint custody, but also Education Law §3635(2) requires parents of nonpublic school students to annually submit a transportation request by April first preceding the next school year. Therefore, petitioner’s challenge to respondents’ determination that the student is a district resident entitled to transportation for the 2015-2016 school year must be dismissed as moot.
Even if the appeal were not dismissed as moot, it would be dismissed on the merits. In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
Here, each of petitioner’s claims are outside of the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310 or otherwise without merit. At the outset, I indicated in Appeal of Squillace (57 Ed Dept Rep, Decision No. 17,385) that petitioner’s argument that the stipulation of settlement bestowed the student with two legal residences was without merit. The reasoning in that decision applies with equal force to the instant appeal. Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187). In cases where parents have joint custody, the child’s time is “essentially divided” between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of T.P., 45 id. 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935). However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).
Petitioner’s request for a determination that the student “is not a resident of [the] Harborfields school district” must be dismissed for failure to state a claim upon which relief may be granted. It is undisputed that prior to October 2014, the student was a resident of respondents’ district. It is true, as petitioner suggests in the petition, that one may abandon his or her residency. However, the remedy where there has been abandonment of a prior residence is to seek a determination of residency from the new district of residence, not to seek a negative declaration of residency from the former district of residence. Petitioner’s legal theory is that her son is a resident of both the Glen Cove City School District and respondents’ district, not that he has ceased to be a resident of respondents’ school district. As noted above, however, a student may only have one legal residence or domicile. Under the circumstances of this appeal, there has been no abandonment of the student’s residency in respondents’ school district — in fact, the student’s father, who has joint custody on a 50/50 basis, argues that the student should continue to be considered a resident of respondents’ district. Therefore, petitioner has not established a legal right to an order declaring that her son is not a resident of respondents’ district.
Petitioner also seeks “[a] finding that there [has been a] change in legal and physical residence established through action and intent.” This argument is not supported by the record. Prior to petitioner and the student’s father’s separation in 2014, they and the student resided within respondents’ district. Here, as in Appeal of Squillace (57 Ed Dept Rep, Appeal No. 17,385), petitioner and the student’s father have failed to designate a school district to serve as the student’s district of residence. As I indicated in that decision, in the absence of such a designation, it was neither arbitrary nor capricious for Harborfields to continue to consider the student a resident of its district and continue to provide transportation in accordance with the request for transportation from the student’s father. I reject petitioner’s argument that respondents could not act on a transportation request from only one parent under the circumstances presented in this appeal. If that were the case, the district would be justified in providing no transportation until a designation was made. It was rational and reasonable for the district to continue to provide transportation in accordance with the request of the student’s father and its past practice absent proof that both parents had agreed that another district had been designated as the student’s district of residence, or that a court had resolved a parental dispute by determining which district should be designated or which parent had the right to make such designation.
Petitioner also seeks a declaration that the parties cannot agree as to which school district to designate as the student’s school district of residence. It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Thus, this claim must be dismissed as seeking an advisory opinion or declaratory ruling.
In any event, I agree with respondents that any dispute between petitioner and the student’s father over which school district should be designated as the student’s district of residence is outside of the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310 and should be resolved by a court in accordance with the stipulation of settlement.
Finally, petitioner’s claim for “damages” must be dismissed for lack of jurisdiction. 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).
Given this disposition, I need not address the parties’ remaining arguments.
THE APPEAL IS DISMISSED.
END OF FILE
 Respondents requested that I consolidate the instant appeal with Appeal of Squillace (57 Ed Dept Rep, Decision No. 17,385) as they concern common issues of fact and law. In my discretion, I decline to consolidate the appeals (8 NYCRR §276.6).
 While the record is unclear as to when this letter was sent or received, respondents assert in their answer that this letter was either dated or sent on February 24, 2015.