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Decision No. 13,849

Appeal of AARON MITCHEM II and JOYCE GRAY on behalf of AARON MITCHEM III from action of the Board of Education of the Manhasset Union Free School District regarding residency.

Decision No. 13,849

(November 3, 1997)

Rains & Pogrebin, P.C., attorneys for respondent, Richard K. Zuckerman and Howard M. Miller, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Manhasset Union Free School District ("respondent") that Aaron Louis Mitchem III is not a resident of the district. The appeal must be sustained in part.

Aaron Mitchem II ("petitioner Mitchem") and Joyce Gray ("petitioner Gray") are the father and maternal grandmother, respectively, of Aaron Louis Mitchem III ("Aaron"). Aaron has lived with his grandmother at 35 High Court, Manhasset, within the district, and attended Manhasset Senior High School, since the fall of 1994. According to petitioners, Aaron resides with his grandmother and not with his parents, who are residents of the neighboring Roslyn Central School District, because Aaron's peers in the Roslyn community physically and verbally assaulted him. These incidents were so significant that the Mitchems had to seek orders of protection. Specifically, Aaron was shot in the face on November 4, 1993 by J.S., a fellow student in Roslyn. As a result of that incident, the Nassau County District Attorney’s Office issued an order of protection against J.S. J.S. violated that order and was subsequently incarcerated for approximately 6 months. Aaron remained a student at Roslyn Middle School during J.S’s incarceration, but upon J.S.’s release in August 1994, he and his family were concerned about his attending Roslyn High School with J.S. When Aaron expressed concerns about his safety and his ability to concentrate on his studies, petitioner Mitchem and his wife met with the Superintendent and Assistant Superintendent of Roslyn and the former superintendent of Manhasset. They then met with Aaron’s guidance counselor, who advised them to submit to Manhasset a parent affidavit, custodial affidavit and the order of protection issued against J.S. Aaron was then accepted and enrolled in Manhasset Senior High School on or about September 19, 1994, where he remained a student until the events leading up to this appeal.

Respondent asserts that during 1995-1996 school year, the district’s residency policy became a major issue within the community. As a result, the district studied and then changed its residency policy, rules and procedures. Many investigations concerning alleged nonresidents, including Aaron, ensued. The record does not show whether the district contacted petitioner Mitchem during its investigation, but during January 1997, Aaron apparently informed his father that he was no longer permitted to participate in school basketball games. Petitioner Mitchem then contacted Manhasset Senior High School and eventually met on January 17, 1997, with Jay Scotto-Friedman, the Manhasset Assistant Superintendent for Business, and the district’s designee for residency determinations.

According to Mr. Scotto-Friedman, at that meeting, petitioner Mitchem stated that Aaron had lived with his grandmother since September 1994, but spends the weekends and holidays in Roslyn; that he and his wife provide for Aaron’s food, clothing and other necessities; that he and his wife make educational and medical decisions for Aaron; that Aaron was covered under his medical insurance when he had such insurance; and that 32 Linden Court in Roslyn (petitioner Mitchem’s address) was listed on Aaron’s Employment Certificate and Learner's Permit for legal reasons. According to respondent, petitioner Mitchem also stated that the primary reason Aaron lives in Manhasset is so he can obtain an education to secure his future. Petitioner Mitchem stated that he and his wife determined that it would be best for Aaron to leave Roslyn because of the injuries he had suffered. In response to Mr. Scotto-Friedman’s question about whether Aaron would be exposed to those same problems on the weekends and holidays, petitioner Mitchem stated those things had simmered down.

On February 14, 1997, Mr. Scotto-Friedman determined that Aaron was not a resident of Manhasset and thus was not eligible to attend the district schools. He based his decision on the information gathered at the January 17, 1997 meeting and on the parent affidavit and custodial affidavits filed in September 1994. Mr. Scotto-Friedman informed petitioner Mitchem of his right to appeal the determination within five days to respondent’s superintendent, Dr. Maria Petraglia, and his right to appeal her determination to the Commissioner of Education. Although Dr. Petraglia extended the deadline until March 10, petitioner Mitchem merely submitted a letter stating that he disagreed strongly with the decision. Dr. Petraglia upheld the district’s determination on March 14, 1997 and informed petitioner that Aaron was not permitted to attend school as of March 26, 1997. This appeal ensued and was served on April 25, 1997. Petitioners also requested a stay, which I granted on May 6, 1997, permitting Aaron to reenter Manhasset Senior High School pending the outcome of this appeal.

I will first address the procedural issue of timeliness. Pursuant to "275.16 of the Commissioner’s Regulations, an appeal to the Commissioner of Education under "310 of the Education Law must be brought within 30 days of the action complained of, unless excused by the Commissioner for good cause shown. Respondent argues that the appeal must be dismissed as untimely since it was filed on April 25, 1997, more than 30 days after respondent’s final determination on March 14, 1997. Petitioners assert that Dr. Petraglia’s deadline expired because they could not secure counsel. They also claim that an erroneous telephone number in Dr. Petraglia’s March 14 letter notifying them of the right to appeal to the Commissioner caused their petition to be filed more than 30 days after the letter. Respondent contends that the erroneous telephone number was merely an incorrect digit, listing the Albany area code as "528" instead of "518." In addition, respondent claims that petitioner Mitchem did indeed have counsel as of April 19, 1997, when he appeared at the district administrative office with an attorney to fill out a Freedom of Information Law request. Respondent’s counsel spoke with that same attorney on April 19, who stated that she intended to commence litigation regarding the residency issue. (However, this petition was filed without assistance of counsel.)

There is no dispute that this appeal was filed more than 30 days after the district’s final determination letter. However, while delay in commencing an appeal may be excused by the Commissioner for good cause (8 NYCRR 275.16), ignorance of the appeal process is not an excuse for failing to file a timely appeal (Appeal of Kline, 35 Ed Dept Rep 91). Neither is petitioners' alleged inability to obtain counsel (Appeal of T.B., 35 id. 408). Nonetheless, the Commissioner has previously excused delays in residency cases where, inter alia, the delay is de minimus and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy. (SeeAppeal of Murphy, 37 Ed Dept Rep ____, (Dec. #13831, dated 9/4/97.) Those factors are present here. Accordingly, I will not dismiss the appeal as untimely.

Turning to the merits, 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 Keenan, 36 Ed Dept Rep 6; Appeal of Brutcher, 33 id. 56). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Keenan, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted (Appeal of McMullan, 29 Ed Dept Rep 310). 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 Brutcher, supra; Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523). Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Gilbert, 36 Ed Dept Rep 19; Appeal of O’Malley, 35 id. 550; Appeal of Aquila, 31 id. 93; Appeal of Garretson, supra). Moreover, where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Ritter, 31 Ed Dept Rep 24; Appeal of McMullan, supra).

Respondent argues that petitioner Mitchem has not sufficiently rebutted the presumption that his son resides with him in Roslyn. Respondent maintains that the parental affidavit signed by Mrs. Mitchem in September 1994 appointed petitioner Gray as Aaron’s custodian during the school year because there were problems with Aaron’s friends, Manhasset has a better program and Aaron's parents expected to move to Manhasset. Respondent also points out that the custodial affidavit signed by petitioner Gray in September 1994 states that Aaron will stay with her until his parents move and that his parents will provide for all Aaron's needs, including educational and medical care. In addition, at the January 1997 meeting, respondent argues that petitioner Mitchem conceded that he has not permanently relinquished control and custody of Aaron, that he contributes to Aaron’s financial support and continues to exercise control over his upbringing and education. Respondent also contends that petitioners admit in the petition that Aaron's living arrangement with petitioner Gray is indefinite and solely to enable Aaron to attend school in the district.

Petitioners assert that Aaron did not enroll in Manhasset to take advantage of its educational program, but rather seeks to attend Manhasset Senior High School because of concerns for his physical safety. They point out that the Roslyn schools are in fact ranked higher than the Manhasset schools. Petitioners assert that Aaron began living apart from his parents on or about June 24, 1994 and only later applied for admission to Manhasset in August 1994. Petitioner Mitchem also states that he and his family are trying to relocate to Manhasset and have contacted the North Hempstead Housing Authority to assist them. Petitioners maintain, contrary to the statements in the 1994 affidavits, that petitioner Gray supports Aaron, provides his food, shelter and clothing, and exercises control over his behavior. In support of this assertion, petitioners attach an Order to Show Cause from the Nassau County Family Court for a hearing on May 14, 1997, pursuant to petitioner Gray’s motion for custody of Aaron. On August 13, 1997, pursuant to 8 NYCRR 276.5, I requested a copy of any documents relating to the outcome of that hearing. Petitioners forwarded a copy of a Temporary Order, dated May 29, 1997, issued by the Family Court. That Order awarded legal and physical custody of Aaron to petitioner Gray, effective May 14, 1997.

When a court has issued letters of guardianship to an adult residing within a given district, the ward is presumed to reside in that school district (Appeal of Frank, 36 Ed Dept Rep 110; Appeal of Opurum, 35 id. 364; Appeal of Britton, 33 id. 120). However, parents may not transfer legal guardianship of their children merely to achieve residence status for the children to take advantage of local schools (Matter of Proios, 111 Misc. 2d 252; Appeal of Gilbert, 36 Ed Dept Rep 19; Appeal of Opurum, supra).

While I note that the Family Court proceeding in this case was instituted in April 1997, after the February 14, 1997 residency determination by the district, there is no direct evidence in the record to determine whether petitioners instituted the custody proceeding merely to achieve residency for school purposes. Moreover, since the Family Court Order was issued subsequent to respondent’s determination, the district had no opportunity to consider the Court Order in making its determination, nor to rectify the apparent conflict between the district’s stated policy regarding letters of guardianship and the facts of this case. The district’s own residency policy provides in pertinent part that:

Children of school age who are residents of the district may attend school without payment of tuition. A child is presumed to be a resident of the school district in which his or her parents reside. A child’s residence may become that of a person or persons other than his or her parents in the following situations:

  1. The person with whom the child is living is his legal guardian pursuant to letters of guardianship issued by a court of competent jurisdiction;
  2. The child’s parents have surrendered complete permanent and full-time care, custody and physical control to the person with whom the child is living.

Based on the record before me, I am unable to determine Aaron’s residency and whether a total transfer of custody and control to petitioner Gray has occurred. Accordingly, I am compelled to remand the matter back to the district to rectify the conflict between its stated policy and the Family Court Order. In doing so, the district should ascertain whether the Mitchems have indeed transferred total custody and control of Aaron to petitioner Gray in light of the Family Court Order; whether seeking the court order was a legitimate transfer of custody or effectively a sham for the purpose of transferring guardianship solely for educational purposes; whether a continued threat to Aaron’s safety exists; and any other relevant information or evidence necessary to make its determination based on the totality of the circumstances.

Since I am remanding the matter, I will not address petitioners’ claim that the district violated 8 NYCRR 100.2(y) by failing to give petitioner Mitchem notice and an opportunity to present information in support of Aaron’s residency. However, I remind the district to adhere to all requirements in conducting future residency hearings.


IT IS ORDERED that respondent hold a hearing pursuant to 8 NYCRR "100.2(y) to determine whether Aaron Mitchem III is a resident and entitled to attend the schools of the Manhasset Union Free School District.

IT IS FURTHER ORDERED that respondent permit Aaron to remain in school until respondent issues its residency determination.