Decision No. 13,646

(August 13, 1996)

Wright and Fingerit, Esqs., attorneys for petitioner, Michael J. Fingerit, Esq., of counsel

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, L.L.P, attorneys for respondent, Christopher Venator, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals the determination by the Board of Education of the Herricks Union Free School District ("respondent") that his nieces are not residents of the district. The appeal must be sustained.

Petitioner is a resident of respondent's district and the uncle of Mehraj, Shariqa and Masooma Hydary. Petitioner states that in March 1990, his sister Kulsum Sarfarz Hydary, her husband and their three children moved in with him and his wife. On or about March 27, 1990, Mrs. Hydary enrolled her children in the district's schools and asserted that she and the children were living in the district with petitioner. In September 1994, petitioner's sister's husband moved out of petitioner's home, separated from his wife and rented an apartment in New Hyde Park. On or about January 1995, petitioner's sister reconciled with her husband and moved in with him at the New Hyde Park address.

In February 1996, respondent received information that the Hydary family was residing in New Hyde Park, a non-district address. Respondent received this information from an anonymous caller, a real estate agent and the landlord of the Hydary family at the New Hyde Park address. Respondent's superintendent then advised the Hydary family that questions had arisen regarding the family's residency. On March 5, 1996, respondent's superintendent met with Mrs. Hydary, who acknowledged that she and her family were living in New Hyde Park and produced a lease agreement as evidence. Respondent's superintendent contends that Mrs. Hydary admitted to living outside the district, that her children lived with her and her husband Friday through Sunday, and that she at no time indicated that she and her husband had transferred their parental rights to petitioner. Respondent also received a notarized statement from Patrick Meallet, a resident of the New Hyde Park address of the Hydarys, who stated that the three children lived with their parents at that address until they moved, on or about March 12, 1996, to Floral Park.

By letter dated March 6, 1996, respondent informed the Hydarys and petitioner that it would not permit the Hydary children to continue to attend district schools after March 11, 1996. Respondent also submitted a bill to the Hydarys in the amount of $47,544.75 which represents the tuition charge for the education of their three children from September 14, 1994 through March 8, 1996. Respondent allowed the children to remain in school until March 25, 1996 to permit an appeal to the Commissioner of Education. This appeal was commenced on March 20, 1996. Petitioner's request for interim relief pending a determination on the merits was denied on March 27, 1996. Petitioner requested reconsideration and interim relief was granted in part on April 11, 1996 and Commissioner Mills ordered the admission of Mehraj Hydary to respondent's schools.

Petitioner alleges that his nieces have resided continuously with him since March 1990. He also alleges that his sister's English is poor and that she did not understand the nature of the residency hearing held by respondent's superintendent that determined that she and her children were not residents of the district. Petitioner requests that I reverse respondent's residency determination or order a re-hearing at which petitioner may present proof that the children have continuously resided with his wife and him since March 1990. Petitioner also alleges that his sister's husband has rented an apartment that is within respondent's district. Respondent contends that its determination as to the residency of the Hydary children was proper. Respondent also contends that Mrs. Hydary never transferred custody and control of her children to petitioner.

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

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Brazile and Bradford, 35 Ed Dept Rep 456; Appeal of Gorrasi, 35 id. 68; Appeal of Garretson, 31 id. 542; Matter of Van-Curran and Knop, 18 id. 523).

The record in this case indicates that although petitioner claims to have had custody of his nieces since March 1990, there are statements from individuals that indicate that the Hydary children spend considerable time with their parents at an address outside the district. The lease agreement Mrs. Hydary presented to respondent's superintendent lists the children as occupants of the premises in New Hyde Park. Although petitioner claims that Mrs. Hydary only included the children on the lease because she thought it was required since they visited although they never resided there, I do not find that statement persuasive. Furthermore, although petitioner supplies a number of affidavits from neighbors stating that the Hydary children reside with his wife and him, he offers no other proof that there has been a transfer of custody and control from his sister to him.

In addition, respondent asserts that all contacts by district personnel concerning the Hydary children have been with Mrs. Hydary, and respondent presents evidence that Mrs. Hydary has signed her children's report cards, communicated with staff and participated in parent/teacher conferences. The fact that Mrs. Hydary has made educational decisions for her children, is inconsistent with petitioner's claim that his sister has relinquished custody and control to him. Although I am sympathetic to the extenuating circumstances in this case, including marital discord between the Hydary parents, poor health of Mrs. Hydary and her lack of fluency in the English language, based on the record before me, I cannot conclude that petitioner has custody of the Hydary children.

Petitioner's attorney also claims that petitioner and Mrs. Hydary were denied due process and criticizes the procedures taken by respondent's superintendent. The questions involving the residency of the Hydary children were instigated by an anonymous telephone call. However, once made aware of the possibility that the children were not residents of the district, the superintendent notified the parents of the children that questions had arisen as to their residency and that pursuant to Section 100.2 of the Regulations of the Commissioner, a meeting would be held on March 5, 1996.

Petitioner's attorney claims that the superintendent's use of the word "meeting" rather than "hearing" does not conform with due process. However, the provisions of 8 NYCRR 100.2(y) regarding the determination of student residency do not use the word "hearing" and I find that the notice provided by respondent conforms to the regulations. Petitioner also claims that Mrs. Hydary's command of the English language is poor and that she did not understand the nature of the proceeding or her role in it. The record indicates that the superintendent and Mrs. Hydary met and discussed the issue. It does not appear that Mrs. Hydary's use of the English language was so limited as to preclude a meaningful discussion of the children's residency based on her statements to the superintendent concerning the children's living arrangements. I find no basis to overturn respondent's residency determination based on petitioner's claims of denial of due process.

However, the record also indicates that Mr. Hydary has rented an apartment in Albertson which is within respondent's district and has entered into a one year lease beginning on April 1, 1996 to March 31, 1997. Based on this document, the Hydarys have established a residence within the district that entitles the children to attend school in respondent's district. Respondent does not dispute the validity of the lease. Therefore, I find that the Hydary children are residents of respondent's district.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent immediately admit Mehraj, Shariqa and Masooma Hydary to the schools of the Herricks Union Free School District without the payment of tuition.

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