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Decision No. 14,003

Appeal of ALEX and MINA PEYKAR, on behalf of JONATHAN PEYKAR, from action of the Board of Education of the Roslyn Union Free School District regarding residency.

Decision No. 14,003

(August 31, 1998)

Goldstein & Garbar, P.C., attorneys for petitioners, Harvey O. Garbar, Esq., of counsel

Jaspan, Schlesinger, Silverman & Hoffman, LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Roslyn Union Free School District ("respondent") that their son, Jonathan, is not a district resident for purposes of attending its schools tuition-free. The appeal must be dismissed.

Petitioners reside in the Town of Brookville within the Locust Valley Union Free School District ("Locust Valley"). On August 31, 1995, petitioners sought to register Jonathan in the Roslyn Union Free School District ("Roslyn") representing that Jonathan did not reside with his parents in Brookville, but resided with relatives, Doreen and Andrew Peykar, at 15 Oak Drive in Roslyn. Without approving the enrollment application, the district registered Jonathan "pending final custody papers by Oct. 15, 1995."

On October 18, 1995, the district received from petitioners an order of the Family Court, Nassau County, appointing Doreen Peykar as the temporary guardian of Jonathan. In their accompanying letter to the district, petitioners promised that Doreen Peykar would obtain an order of permanent guardianship on November 1, 1995, and that they would forward a copy of that order to the district.

The district never received the promised order granting permanent guardianship to Doreen Peykar. Nevertheless, it allowed Jonathan to continue in attendance through the 1995-96 and 1996-97 school years.

Respondent alleges, and petitioners do not deny, that on September 26, 1997, Jonathan represented to his guidance counselor that he resided with his parents in Brookville, and that he attended school in Roslyn because his parents did not like the schools in Locust Valley. Respondent, thereafter, commenced an investigation to determine Jonathan’s legal residence.

In the course of this investigation, petitioners met with respondent’s representatives to discuss Jonathan’s residency. During the meeting, petitioners reportedly explained that they enrolled Jonathan in respondent’s school for medical reasons only. Jonathan has had two open heart surgeries. He attended school in Locust Valley until the end of the sixth grade. However, following his second surgery, Jonathan experienced a medical emergency and was rushed to a local hospital that was ill-equipped to accommodate him. In light thereof, petitioners desired that Jonathan attend school in Roslyn so that, in the event of another emergency, he would be within a shorter driving distance to the Long Island Jewish Hospital or the St. Frances Hospital, which are better equipped to attend to Jonathan’s needs. Moreover, petitioners stated that they travel frequently on job-related matters and cannot guarantee their availability in an emergency. Thus, residency with the relatives was established. Petitioners, however, conceded that, despite the transfer of guardianship to Doreen Peykar, they continued to make all medical decisions for Jonathan.

Petitioners confirmed much of this information in a letter dated October 30, 1997, addressed to Arnold Pressman, the district’s Director of Guidance. In that letter, petitioners added that several of their relatives who reside in Roslyn offered to assume full responsibility and guardianship of Jonathan "in order for him to attend Roslyn School" and, because "Jonathan had a few friends in Roslyn School, [they] decided to let Andrew and Doreen Peykar become his guardians." Petitioners further represented that, while attending school in Roslyn, Jonathan "spent some time with [them] at [their] residence in Brookville, but some time with ... Andrew and Doreen Peykar in Roslyn."

On December 2, 1997, respondent’s superintendent met with petitioners. Thereafter, by letter dated December 11, 1997, the superintendent notified petitioners that, following careful review of the matter, effective January 31, 1998, the district would exclude Jonathan as a nonresident. He based his decision on petitioners’ admission that they reside in Locust Valley and did not intend to transfer care, custody and control of Jonathan to a third party.

By letter dated December 19, 1997, petitioners appealed to respondent board. They reiterated the circumstances of Jonathan’s enrollment in the district and added: "Although we realize the guardians must receive transfer of care, custody and control of Jonathan, we have not been able to let go of his health responsibilities. We had to inform the school to contact us first in the case of an emergency; then his guardians." Petitioners requested that Jonathan be allowed to complete the school year, and promised that, unless they relocate their residence to Roslyn, Jonathan would not be registering in respondent’s schools for the 1997-98 school year.

It appears that Jonathan has since returned to live in Brookville and that he no longer attends school in Roslyn.

On January 30, 1998, the Roslyn Board affirmed the superintendent’s decision and demanded that petitioners pay non-resident tuition of $43,802.50 for the years that Jonathan was in attendance.

On this appeal, petitioners contend that respondent’s determination was unfair, arbitrary and capricious. They maintain that Jonathan was a bona fide resident of the district during the time that he attended school in Roslyn, and that guardianship was transferred in the sole interest of protecting their child’s health. Moreover, the district was aware of Jonathan’s special needs and "[had given] its blessing" to the transferred guardianship. The final order of the Family Court, dated February 13, 1996, appointing Doreen Peykar as guardian, is attached to the petition.

Respondent maintains that its determination that the child was not a resident of the district was neither arbitrary, capricious nor unreasonable, but was proper in all respects. Respondent contends that the sole purpose for transferring custody was to remove the student from Locust Valley, and that the presumption of parental residency has not been rebutted because petitioners have failed to demonstrate a total and permanent transfer of custody. Respondent seeks to dismiss the petition as moot, as failing to state a claim upon which relief may be granted, and because petitioners allegedly lack standing to bring this appeal.

I will first address respondent’s procedural defenses. With respect to the claim of mootness, the Commissioner of Education 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 a Student with a Disability, 37 Ed Dept Rep 166; Appeal of Stopka, 34 id. 157; Appeal of Langenmayr, 30 id. 322). In this case, petitioners do not seek an order directing respondent to educate their child tuition-free. Rather, they seek to have respondent’s determination annulled to the extent that it declares that Jonathan was not a resident of the district and demands payment of non-resident tuition for the period that Jonathan attended school in Roslyn. Accordingly, a live controversy remains and the appeal will not be dismissed as moot (see, e.g., Appeal of a Student with a Disability, supra; Appeal of Werher, et al., 31 Ed Dept Rep 186).

Respondent further contends that petitioners do not have standing to bring this appeal because they are neither residents of its school district nor, by their own arguments, Jonathan’s custodial guardians. However, while an individual may not maintain an appeal pursuant to Education Law "310 unless he is aggrieved in the sense that he has suffered personal damage or injury to his civil, personal or property rights (Appeal of Bocek, 37 Ed Dept Rep 130), there is no requirement that a parent must be the custodial guardian of his child in order to bring an appeal under that statute. As Jonathan’s parents, petitioners are aggrieved by respondent’s exclusion of their son, and, thus, have the requisite standing to bring this appeal (see, Matter of Howell, 20 Ed Dept Rep 167).

The appeal, however, must be dismissed on the merits. Following a careful review of the record, I find that respondent’s determination that Jonathan was not a resident of the district is reasonable and, as such, it will not be set aside.

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 Revella, 37 Ed Dept Rep 65; Appeal of Curtin, 27 id. 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 Revella, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted by a determination that there has been, among other things, a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Rivkin, 37 Ed Dept Rep 370; Appeal of Revella, supra; Appeal of Garretson, 31 id. 542) and that the individual exercising such control has full authority and responsibility with respect to the child’s support and custody (Appeal of a Student with a Disability, 37 Ed Dept Rep 173; Appeal of Garretson, supra; Appeal of Pernell, 30 Ed Dept Rep 380). However, where the parent continues to exercise custody and control of the child, the presumption is not rebutted and the child’s residence remains with the parent (Appeal of Garretson, supra; Appeal of Aquila, 31 Ed Dept Rep 93; see, Matter of Delgado, 24 id. 279).

Furthermore, 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 Murphy, 37 Ed Dept Rep 162; Appeal of Frank, 36 id. 110; Appeal of Opurum, 35 id. 364). However, parents may not transfer legal guardianship of their children merely to achieve residence status for the children to take advantage of the local schools (Matter of Proios, 111 Misc 2d 252; Appeal of Murphy, supra; Appeal of Opurum, supra).

Applying these principles to the facts of this case, I find no evidence that would lead me to conclude that petitioners transferred guardianship merely to take advantage of the educational offerings of the school district. While petitioners repeatedly expressed their desire to have Jonathan attend school in Roslyn, it appears that the primary reason for doing so was to ensure that, in the event of a medical emergency during school hours, Jonathan would be readily transported to the hospital of their choice. The petition for guardianship specifically states that the transfer was being made to accommodate Jonathan’s medical needs and promote his parents’ interests in ensuring that he was closely supervised in their absence. Moreover, Jonathan did not begin living with his relatives until after he had completed the sixth grade in Locust Valley and had developed complications with his illness. While it is true, as respondent contends, that petitioners did not refute the claimed statement which Jonathan made to his guidance counselor, I note that the record does not contain an affidavit from the guidance counselor on this issue. Absent other convincing evidence to the contrary, I cannot conclude that the educational advantages of the school district were the motivating factors for the guardianship order (see, Appeal of Murphy, supra; Matter of Tiger, et al., 16 Ed Dept Rep 178; Matter of Morello, 9 id. 130).

Nevertheless, I find that the guardianship order is not alone dispositive of the residency question here. While I sympathize with the medical concerns of petitioners, the record before me indicates that there has not been a complete and permanent transfer of custody sufficient to rebut the claim that Jonathan was not a resident of Roslyn. Despite the order transferring guardianship, petitioners retained some degree of control in Jonathan’s life. Petitioners candidly admit that they retained the right to make all medical decisions on Jonathan’s behalf and they do not refute respondent’s claim that they continued to make all his educational decisions as well. This admission contradicts any claim that there had been a complete transfer of custody and control. Moreover, there is no indication in the record that Jonathan’s guardian provides all the necessary financial support for Jonathan. Accordingly, the presumption of residence with the student’s parents is not rebutted and respondent’s determination will not be disturbed (see, e.g., Appeal of Creson, 34 Ed Dept Rep 19; Appeal of Brutcher, 33 id. 56).

Moreover, Jonathan has since returned to reside with petitioners, suggesting, thereby, that petitioners also retained the right to recall the child at any time and terminate the guardianship arrangement. This factor, by itself, eliminated any argument that the transfer of custody was permanent (see, Horowitz v Board of Educ. of the City of Yonkers, 217 App Div 233, 236; Matter of Duffy, 75 State Dep Rep 25, 26).

The record supports a finding that Jonathan was not a resident of the Roslyn school district and, therefore, was not entitled to attend the schools of that district without the payment of tuition. Accordingly, respondent’s determination will not be set aside.

In view of this determination, I will not address the parties’ remaining contentions.