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Decision No. 15,423

Appeal of C.G., on behalf of N.R., from action of the Board of Education of the Springville-Griffith Institute Central School District regarding residency.


Decision No. 15,423


(July 7, 2006)


Hodgson Russ, LLP, attorneys for respondent, Ryan L. Everhart, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Springville-Griffith Institute Central School District (“respondent”) that N.R. (“N.R.”) is not a district resident.  The appeal must be sustained.

Prior to the commencement of this appeal, N.R. resided with his family in respondent’s district for several years. In 1994, N.R.’s father died.  In 2002, his mother died.  In 2004, N.R. went to live with his aunt and uncle in Virginia who had been granted custody of N.R.  After attending school in Virginia for one year, N.R. moved back to respondent’s district to live with petitioner. 

In August 2005, petitioner attempted to enroll N.R. in respondent’s schools.  By letter dated September 7, 2005, respondent’s superintendent notified petitioner that she had determined that N.R. was not a district resident.  This appeal ensued.  Petitioner’s initial request for interim relief was denied on September 23, 2005. 

Petitioner subsequently submitted to respondent an Order for Custody/Visitation from the Norfolk Juvenile and Domestic Relations District Court dated November 3, 2005.  The court order granted joint legal and physical custody of N.R. to petitioner and her husband.

By letter dated November 15, 2005, respondent’s superintendent notified petitioner that despite the court order, the district maintained its position that N.R. was not a district resident.

In January 2006, petitioner sought permission to submit an amended petition, affidavit and exhibits in this appeal.  Petitioner also sought a reconsideration of her request for interim relief.  Respondent objected to the submission.  Pursuant to ��275.3(b) and 276.5 of the Commissioner’s regulations, I have accepted and considered the additional pleadings, affidavits and exhibits submitted by the parties.  Petitioner’s second request for interim relief was granted on January 18, 2006.

Petitioner contends that N.R. resides with her family within the district and should be permitted to attend respondent’s schools.

Respondent argues that petitioner lacks standing. Respondent further contends that petitioner obtained the court order for the sole purpose of circumventing the district’s non-resident policy and to take advantage of respondent’s schools.  Respondent also asserts that the court order is unclear as to petitioner’s status with respect to N.R.

An individual may not maintain an appeal pursuant to Education Law �310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Bermudez, 41 id. 355, Decision No. 14,712).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Polmanteer, 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Murphy, 39 id. 562, Decision No. 14,311).  Petitioner has alleged that she and her husband have joint legal and physical custody of N.R.  Additionally, respondent’s letter to petitioner dated November 15, 2005 notified petitioner of her right to appeal the residency determination to the Commissioner of Education (Appeal of Bermudez, 41 Ed Dept Rep 355, Decision No. 14,712; Appeal of Weik and Teufel, 41 id. 80, Decision No. 14,621).  Accordingly, I will not dismiss the petition for lack of standing.

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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

Custody may be legally transferred from a parent or guardian to a third party by obtaining a court order or letters of guardianship from a court of competent jurisdiction.  Where a court of competent jurisdiction has legally transferred custody of a child, and the child actually lives with the court-appointed guardian, the Commissioner will accept the court’s order as determinative for residency purposes, and will not look behind the court’s decision to determine whether the custody transfer is bonafide (Appeal of D.R., 45 Ed Dept Rep ___, Decision No. 15,412).  This approach recognizes that a change in custody 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 (Appeal of D.R., 45 Ed Dept Rep ___, Decision No. 15,412).

I reject respondent’s assertion that the court order is somehow unclear.  Respondent was provided with the records that were submitted to the court in Virginia in connection with the petition for change of custody of N.R.  Respondent’s authorization for the release of records was signed by N.R.’s former guardian and she specifically refers to herself as guardian from October 5, 2004 through November 3, 2005, the date of the court order transferring custody to petitioner and her husband.  The final order clearly provides that joint legal and physical custody was awarded to petitioner and her husband.  Accordingly, I find that the court order is unambiguous and is dispositive of the transfer of N.R.’s custody to petitioner.

Moreover, it is not disputed that N.R. is actually living with petitioner.  The fact that his aunt and uncle maintain a relationship with N.R. does not negate the child’s residence with the court ordered custodian or guardian.  Accordingly, I find that for the purposes of attending school tuition-free, N.R. is a resident of respondent’s school district.




IT IS ORDERED that respondent allow N.R. to attend school in the Springville-Griffith Institute Central School District without the payment of tuition.