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Decision No. 17,573

Appeal of RITA SAREEN KUMAR, on behalf of her nephew ABHAY ARORA, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 17,573

(January 29, 2019)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

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

Petitioner is a district resident and the aunt of Abhay Arora (“Abhay”). According to petitioner, Abhay, who previously resided with his mother in India, moved into petitioner’s home in April 2018. Petitioner attempted to register Abhay, a United States citizen, to attend respondent’s schools beginning in September 2018.  By letter dated August 29, 2018 petitioner’s request was denied.

On September 7, 2018, respondent held a residency hearing at which petitioner was present. During the hearing, petitioner testified that Abhay graduated school in India after completing tenth grade and that his mother now “wants him to more for further education [sic].”  Petitioner also testified that the family’s plan is to have petitioner’s  sister, Abhay’s mother, apply for permanent residency and then “she will take responsibility” for Abhay.  Also at the hearing, petitioner testified that the 10 percent financial support that the mother would provide, as stated in her registration form, referred primarily to clothing for Abhay and that petitioner and her husband would otherwise “fully support” Abhay.  In addition, petitioner testified that Abhay’s mother would visit him regularly because she has a “visiting visa” allowing her to come to the United States “every six month[s].”  Petitioner testified that Abhay’s mother was planning to come on September 18th or 19th and stay for about two months, during which time she would stay with petitioner.

By letter dated September 17, 2018, respondent’s administrative review officer advised petitioner of respondent’s determination that Abhay was not entitled to attend respondent’s high school.  The letter stated that the basis for this determination was that Abhay’s parental residence was out-of-district, there was no relinquishment of care, custody and control to petitioner and the living arrangements with petitioner were established for the sole purpose of attending the district’s schools.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 11, 2018.  

Petitioner contends that Abhay resides with her and that his mother has relinquished custody and control of Abhay to her.  Petitioner requests a determination that Abhay is a resident of respondent’s district and is entitled to attend respondent’s schools without the payment of tuition.

Respondent asserts that petitioner failed to establish that a permanent relinquishment of custody and control occurred sufficient to rebut the presumption that Abhay’s residence continues to be that of his mother and that the sole reason for petitioner’s claim is to take advantage of the district’s schools.  Respondent maintains that its determination that Abhay is not a resident of its school district is rational and should be upheld.  Respondent also claims that petitioner’s assertion that Abhay’s mother is financially unable to care for him is “new evidence” that should not be considered because it was not before respondent when it made its determination.

Education Law §3202(1) provides, in pertinent part:

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 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 Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Naab, 48 id. 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801).  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 Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Naab, 48 id. 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).

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 M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

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 Abhay from his mother to petitioner.  Petitioner has submitted multiple documents to support her claim that custody has been transferred, including Abhay’s birth certificate and passport, the district’s registration form completed by petitioner, a certificate of marriage dissolution between Abhay’s parent’s, a non-custodial parent affidavit completed and signed by Abhay’s mother in India, and notarized in India, an affidavit from Abhay’s father also notarized in India, and several documents that demonstrate that petitioner and her husband own and reside in their home.  However, none of these documents establish that Abhay’s parents have transferred total and permanent custody and control of Abhay to petitioner. During the September 7, 2018 residency hearing, petitioner stated that Abhay’s mother supports Abhay by providing him clothes and that the guardianship was only until Abhay’s mother can obtain permanent residency in the United States from India, at which time “she will take responsibility.”

Indeed, the record indicates that the sole reason Abhay came to live with petitioner is to attend school in respondent’s district.  In the district’s registration form which petitioner completed, she wrote that Abhay “wants to live with Aunt for schooling purposes.”  Abhay’s mother, in her parent’s affidavit, a form prepared by respondent, wrote that the reason Abhay was not living with her in India was “for further education” and that she has asked her sister, petitioner, to assume responsibility for Abhay’s custody and control “to obtain the education in United States.”  Additionally, she stated that the living arrangement would continue “until the year of graduation.” In another document entitled “affidavit cum authority letter” dated September 1, 2018 and also notarized in India, Abhay’s mother states that her sister is to act as Abhay’s guardian “during the period of his education” and that he will be living with petitioner until he reaches “legal adult age”.  Additionally, during the residency hearing, petitioner stated that Abhay finished tenth grade in India but his mother wanted him to further his education and that Abhay left India specifically to further his education.  

Also, petitioner avers in an affidavit submitted with the petition that Abhay’s parents relinquished control to her because they are “no longer able to care for him due to unstable living conditions and poor finances.”  Abhay’s father’s affidavit, stamped September 20, 2018 by the notary in India does state that it is not “safe for Abhay to live in India with me”, that he “has no ability to care for Abhay” and that he has no “financial means to raise Abhay.”  His statement, however, that Abhay’s mother does not have the financial means to raise Abhay is based “upon information and belief.”  Further, petitioner testified during the residency hearing that Abhay’s father has not provided for Abhay since he was born.  Additionally, petitioner submitted evidence that Abhay’s parents’ marriage was dissolved effective June 7, 2018 and testified that, until moving to petitioner’s home, Abhay resided with his mother and grandmother in India.[1]  Thus, by petitioner’s own admission, Abhay’s father’s inability to financially support Abhay is not a change in circumstance since Abhay’s birth.  Of significance, Abhay’s mother makes no claim of economic hardship or unstable living conditions in her parent’s affidavit (respondent’s Form D) or in her notarized affidavit from India dated September 1, 2018 or in a notarized letter she wrote to respondent dated August 16, 2018.  Nor was any evidence submitted documenting such claim.  Also, petitioner did not discuss Abhay’s parents’ poor finances or unstable living condition during the residency hearing with the exception of Abhay’s father’s failure to provide for him. 

Previous Commissioner’s decisions have found that, where there are overriding reasons for establishing one’s residence apart from one’s parents, aside from taking advantage of the educational programs of the district, and all of the indicia of residency have been met, the fact that the choice of residence incidentally affords the student the opportunity to attend a certain school is not determinative (see e.g. Appeal of Burova, 56 Ed Dept Rep, Decision No. 16,979; Appeal of Schillaci, 53 id., Decision No. 16,570; Appeal of Juarez, 39 id. 184, Decision No. 14,208).  However, as described above, the indicia of residency have not been established; specifically petitioner has failed to demonstrate a permanent and total transfer of custody and control to her and an overriding reason such as economic hardship or an inability to care for Abhay has not been proven in this case.  Rather, it is evident that petitioner has been granted only temporary custody for the duration of Abhay’s education and that Abhay’s mother has continued to provide support for Abhay.  The record indicates that Abhay resides with petitioner for the purpose of taking advantage of respondent’s schools. 

Accordingly, on this record, petitioner has not rebutted the presumption that Abhay’s residence is with his parents (see Appeal of Burova, 56 Ed Dept Rep, Decision No. 16,979; Appeal of Begum, 55 id., Decision No. 16,799; Appeal of Schillaci, 53 id., Decision No. 16,570).  I find no basis upon which to set aside respondent’s determination.

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

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on Abhay’s behalf at any time, should circumstances change, and to present any documentary evidence for respondent’s consideration regarding legal transfer of custody or other bona fide reasons(s) for establishing residence apart from his parents consistent with 8 NYCRR §100.2(y).

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] I note that the June 7, 2018 certificate of dissolution of the marriage between Abhay’s parents which was issued by the court of Dr. Sudhir Kumar Jain, Principal Judge, Family Courts (West), Tis Hazari Court, Delhi, does not discuss the custody of Abhay or which parent will make educational decisions on his behalf.