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Decision No. 15,412

Appeal of D.R., on behalf of her niece G.R., from action of the Board of Education of the Massapequa Union Free School District regarding residency.


Decision No. 15,412


(May 26, 2006)


Medina & Ketover, LLP, attorneys for petitioner, Joshua S. Ketover, Esq., of counsel


Guercio & Guercio, attorneys for respondent, Randy Glasser, Esq., of counsel



MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District ("respondent") that her niece, G.R., is not a district resident.  The appeal must be sustained.

Prior to the events that are the subject of this appeal, G.R. resided with her mother and grandmother outside of respondent's district and attended seventh grade in a private school.  By Order of Custody and Visitation dated February 14, 2006 (the "Order"), the Nassau County Family Court awarded custody of G.R. to petitioner, a resident of respondent's district, allotting "parenting time" to G.R.'s mother.  The court also granted both petitioner and G.R.'s mother access to information and records pertaining to G.R.'s health, education and welfare, and the ability to execute any required authorizations.

Petitioner registered G.R. for respondent's schools and received her schedule and bus pass.  By letter dated February 17, 2006, respondent's assistant superintendent notified petitioner that G.R.'s residency was in question.  After a residency hearing on February 24, 2006, the assistant superintendent notified petitioner that he had determined that G.R.'s legal residence for the purpose of attending public school is with her mother in New York City.  Specifically, he found that: G.R.'s mother had not relinquished custody and control; the sole reason G.R. is claiming to reside with petitioner is to take advantage of respondent's schools; G.R.'s mother and grandmother provide financial support; and G.R. is claimed as a deduction on her mother's W-2 form.  This appeal ensued.  Petitioner's request for interim relief was granted on March 15, 2006.

Petitioner contends that G.R.'s mother suffers from psychiatric and emotional problems which affect her ability to properly supervise and make decisions for G.R.  She explains that G.R.'s grandmother financially and emotionally supported G.R. and her mother, but that due to age and illness, she is no longer able to do so.  She argues that these factors have adversely affected G.R.'s emotional, educational and physical development, and that it was for these reasons that she applied for custody of G.R.

Petitioner argues that she has sole custody of G.R., who has been living with her since the custody award.  Petitioner argues that she is solely responsible for G.R. financially and for decisions regarding her well-being.  According to petitioner, she encourages a continued relationship between G.R. and her mother, and G.R. spends every other weekend and some holidays with her.  Petitioner contends that respondent's residency decision is arbitrary, capricious and an abuse of discretion and requests a determination that G.R. is a resident of respondent's district and entitled to attend its schools tuition-free.

Respondent argues that because G.R.'s mother has not relinquished total custody and control, G.R. is a resident of New York City, where her mother resides.  Respondent relies on those parts of the Order which grants G.R.'s mother "parenting time" every week from after school on Friday to Sunday evening and all school recess and vacation periods, together with access to G.R.'s records and information.  Respondent also contends that petitioner has not established that G.R.'s mother is incapable of caring for her and that G.R.'s grandmother continues to provide financial support.  Respondent also argues that petitioner failed to name G.R.'s mother as a necessary party.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Because G.R.'s mother's rights with respect to G.R. are clearly defined in the Order and will not be altered by my residency determination, I will not dismiss the appeal for failure to join her as a necessary party.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  "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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  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 L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

Custody may be legally transferred from a parent to a third party by obtaining a court order or letters of guardianship from a court of competent jurisdiction.  In the exercise of its discretionary authority, a court may examine whether a proposed guardianship arrangement is bona fide, or is merely a ruse to afford a child the right to attend a different school (seeMatter of Proios, 111 Misc 2d 252).  In Proios, for example, the parents of a high school student who moved outside of the preferred school district petitioned the Nassau County Surrogate's Court to transfer guardianship of the student to an individual who resided within the preferred school district.  In dismissing the petition, the court found that the proposed guardianship plan was contrived to defeat the right of the school district to exclude non-residents.

Beginning in 1991, a number of the Commissioner's residency decisions relied on Proios for the proposition that parents may not transfer legal guardianship of a child merely to take advantage of local schools (seee.g.Appeal of Pinto, 30 Ed Dept Rep 374, Decision No. 12,499).  In the Proios progeny, the Commissioner looked behind the court-ordered transfers to examine denovo why the custody transfer was made.  In Appeal of Opurum (35 Ed Dept Rep 364, Decision No. 13,572), for example, the Commissioner concluded that legal guardianship was sought for the purpose of establishing school district residency and refused to recognize residency based on guardianship entered into for that purpose, despite a binding custody order from a court of competent jurisdiction.  Similar decisions followed.

While it may be technically true that at the time a court order is sought it is to establish residency, there are often other reasons, such as family conflict or inability to care for a child, that caused the child to live with the third party in the first instance.  Nevertheless, it is for the court, and not the Commissioner, to weigh these factors -- which may well include the child's educational development -- when deciding custody and assessing the "best interests" of the child.  Once a judicial determination is made, it is binding on the Commissioner, and it is not appropriate for the Commissioner to look behind the court's decision to determine whether the custody transfer is bonafide.  To hold otherwise would be to invite inconsistent determinations where a child is denied the ability to attend a school even though he/she is in the legal custody of a resident of that school district.  This approach recognizes that a change in custody from a parent to a non-parent 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.

It is not disputed here that the court awarded custody of G.R. to petitioner.  Therefore, for the reasons set forth herein, I will not look behind the Order, but rather respect it as dispositive of the transfer of G.R.'s custody to petitioner.

Nor is there any question that G.R. is actually living with petitioner.  The fact that a parent, as in this case, maintains a relationship with the child or retains some visitation or other rights does not negate the child's residence with the court-ordered custodian or guardian.  Thus, G.R.'s relationship with her mother through "parenting time" or involvement in the child's schooling or visitation is not determinative (Appeal of B.H., 45 Ed Dept Rep 166, Decision No. 15,291; Appeal of I.M., 43 id. 500, Decision No. 15,065) where G.R. clearly resides with her legal guardian.  I find, therefore, that for the purposes of attending school tuition-free, G.R. is a resident of respondent's school district.

This decision overrules the line of residency cases which "look behind" a court-ordered transfer of custody to a third party.  Any previous decisions by the Commissioner in appeals filed pursuant to Education Law �310 that are contrary to this decision are expressly overruled.  Nothing in this decision, however, should be interpreted to change the analysis in residency cases that do not involve court orders.  Nor does this holding address the situation where the evidence indicates that the child does not actually reside with the court-appointed guardian in accordance with the court order.




IT IS ORDERED that respondent allow G.R. to attend school in the Massapequa Union Free School District without the payment of tuition.