Appeal of a STUDENT WITH A DISABILITY, by his grandparents, from action of the Board of Education of the East Moriches Union Free School District regarding residency.

Decision No. 17,906

(August 10, 2020)

Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, attorneys for respondent, Frank A. Isler, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioners challenge the determination of the Board of Education of the East Moriches Union Free School District (“respondent”) that their grandchild (“the student”) is not a district resident.  The appeal must be dismissed.

The record reflects that, prior to the events described in this appeal, the student and his mother – who is petitioners’ daughter – resided with petitioners at a residence within respondent’s district (the “in-district residence”).  In February 2020, respondent’s superintendent received information indicating that the student’s mother was no longer living in the district.  Upon inquiry, the student’s mother indicated that she had not resided at the in-district residence since 2017 and was living at a residence located outside of respondent’s district (the “out-of-district residence”).

By letter dated February 26, 2020, the superintendent informed the student’s mother that, because she was not a resident of the district, the student was not entitled to attend respondent’s schools without payment of tuition.[1]  The student’s mother appealed this determination to respondent.  Respondent considered petitioner’s appeal at a meeting held on March 11, 2020, which the student’s mother and petitioner C.R. attended.  At the meeting, the student’s mother stated that the student resided with her at the out-of-district residence two to three nights a week and with petitioners at the in-district residence four to five nights a week.  She further indicated that she considered herself to be the student’s custodial parent and that she was involved in the student’s education.

By letter dated March 16, 2020, respondent upheld the superintendent’s determination and indicated that the student would be excluded from respondent’s schools as of March 30, 2020.  Respondent concluded that the student was not a district resident because there had “not been a transfer of total and permanent custody and control over the [student] to [petitioners].”  This appeal ensued.  Petitioners’ request for interim relief was granted on April 15, 2020.

Petitioners contend that they have “custodial care” of the student.  Petitioners further indicate that the student “has always lived with [them],” that they support the student financially, and that “it would be difficult” for the student to reside with his mother at this time due to familial circumstances.  Petitioners request a determination that the student is a resident of respondent’s district and entitled to attend respondent’s schools without payment of tuition.

Respondent contends that petitioners have failed to meet their burden to demonstrate that the student is a resident of respondent’s district.  Specifically, respondent maintains that petitioners have failed to show that the student’s mother has “surrendered total and permanent parental control of [the student] to ... petitioners.” 

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).

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 this record, petitioners have not established that the student’s mother effectuated a total and permanent transfer of custody and control.  Petitioners admit that the students’ parents “have not surrendered [their] parental control over [the student]” to petitioners and that they have been working in a “partnership to manage [his] emotional and medical needs.”  They further indicate that the student resides at the out-of-district address with his mother during “weekends and one weeknight” and receives counseling “to help him to transition into his mother’s care on a more permanent basis.” 

Moreover, the record demonstrates that, during the March 11, 2020 meeting with respondent, the student’s mother answered affirmatively when asked whether she was “in charge of [the student]” and “in control of his life ... as his custodial parent.”  The mother further indicated that she is involved in the student’s education and “participate[s] in educational decisions for him.”  Additionally, the superintendent indicates in an affidavit that, during the past three years, the student’s mother has “attended parent-teacher conferences,” all of the student’s CSE meetings, and other school activities.  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).  Thus, I find that petitioners have not met their burden to show that the student’s mother effectuated a total and permanent transfer of custody and control of the student, as petitioners acknowledge that the student is residing with them temporarily until he is able to “transition” to his mother’s care, and the record reflects that the mother retains some degree of parental authority, including authority over the student’s education. 

Furthermore, the documentary evidence submitted by petitioners does not demonstrate a complete transfer of custody and control of the student to petitioners.  Petitioners submit a copy of a power of attorney executed on March 10, 2017 identifying petitioners as attorneys-in-fact for the student.  The power of attorney indicates, however, that it would remain in effect until “6 months from the start date, terminated as required by [S]tate law, or terminated by [the students’ parents] ..., whichever happens first.”  Thus, as the superintendent indicates in his affidavit, “the maximum life of the document was six months and [it] would have expired on September 10, 2017.”  As such, the power of attorney has expired and is no longer relevant to petitioners’ guardianship status.

Petitioners also submit a “[t]emporary [g]uardianship” agreement executed by the student’s mother on June 16, 2019 naming petitioners as temporary guardians of the student.[2]  The document indicates that petitioners’ temporary guardianship would “become effective on June 19, 2019 and ... remain in full force and effect until such time as [the student’s mother] notif[ies] [petitioners] in writing that this document has been amended or revoked.”  Thus, the student’s mother retains the ability to terminate the guardianship agreement at any time, which, by its terms, is “[t]emporary.”  Moreover, the agreement granted petitioners only “concurrent power” with respect to the student and expressly prohibits petitioners from “mak[ing] a decision that conflicts with the decision of the [student’s] parent, legal guardian, or legal custodian.”  The time-limited and conditional nature of this document prevents it from being considered a total transfer of custody and control (Appeal of L.M., 59 Ed Dept Rep, Decision No. 17,768; Appeal of Romero, 58 id., Decision No. 17,599; Appeal of Burova, 56 id., Decision No. 16,979).

Finally, petitioners argue that it would “be difficult for [the student] to transition to his mother’s house because she is presently a critical care nurse in a COVID 19 unit ... and she is not able to take on the full[-]time care of [the student] at this time.”  Petitioners also submit a letter from the student’s mother in which she indicates that she and the student’s father previously attempted to have the student live with them “full[-]time which resulted in [the student’s] hospitalization in an inpatient psychiatric facility.”  While I am sympathetic to petitioners’ situation, these practical constraints do not constitute a complete transfer of custody and control over the student sufficient to render the student a district resident. 

While the appeal must be dismissed, I note that the student’s legal guardians retain the right to reapply for admission to respondent’s schools on the student’s behalf at any time, should circumstances change, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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