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Decision No. 15,433

Appeal of JOYCE A. FELTON, on behalf of BREALLE I. BROWN, from action of the Board of Education of the Rush-Henrietta Central School District regarding residency.


Decision No. 15,433


(August 1, 2006)


DesMarteau & Beale, attorneys for respondent, George DesMarteau, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Rush-Henrietta Central School District (“respondent”) that her granddaughter, Brealle, is not a district resident.  The appeal must be sustained in part.

Beginning in September 2005, Brealle attended second grade at respondent’s Sherman Elementary School.  Brealle attended the same school for kindergarten and first grade, while residing with her mother and maternal grandparents within the district.  At the end of September 2005, Brealle’s mother moved to Rochester but Brealle remained at her grandparents’ residence.  Brealle’s father also resides in Rochester.

On November 1, 2005, petitioner submitted a custodial affidavit stating that Brealle has lived with her since 1999 and intends to reside with her for two or three more years.  The custodial affidavit also stated that Brealle visits her parents on weekends and occasional weekdays and that her mother picks her up in the evening after school.  It also stated that Brealle is covered under her mother’s Medicaid insurance.

On November 16, 2005, Brealle’s mother submitted a parental affidavit stating that the current living arrangements are “permanent for now, because Brealle loves her teacher and I would do anything not to hurt my child by taking her out of Sherman.”  The parental affidavit also stated that Brealle spends every other weekend with one of her parents and that her mother gave permission for a change in Brealle’s guardianship and insurance coverage.

By letter dated December 6, 2005, respondent’s designee notified Brealle’s mother that Brealle was not a district resident and therefore, not entitled to attend respondent’s schools beyond December 23, 2005.  This appeal ensued.  The district permitted Brealle to continue to attend its schools pending resolution of this appeal.  

With her reply, petitioner submitted a custody petition that she filed on December 13, 2005 in Monroe County Family Court.  Petitioner subsequently submitted the Court’s Order dated March 14, 2006 that awarded joint custody of Brealle to her parents and maternal grandparents, with primary residence with her grandparents.

Petitioner contends that Brealle is a district resident entitled to attend respondent’s schools.  Respondent contends that Brealle is presumed to reside with her parents outside the district and that the presumption is not rebutted by a temporary transfer of custody.  Respondent contends that Brealle spends significant time with her parents, who assist with food, clothing, and other necessities, as well as with health insurance.

Respondent also objects to consideration of the March 14, 2006 Family Court Order.  Respondent maintains that the order is irrelevant because it post dates the district’s residency decision and was not first submitted to the district.  Respondent also objects to certain exhibits submitted with the reply that were not before the residency officer at the time of the determination.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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).

     In this case, petitioner obtained and submitted a custody order during the pendency of this appeal.  Because such a court order would be binding upon respondent and the Commissioner in determining residency, this matter is remanded to respondent to make a new determination of the student’s residency that takes into account the March 14, 2006 Family Court Order in light of the Commissioner’s decisions in Appeal of Ayers, 45 Ed Dept Rep ____, Decision No. 15,425; Appeal of C.G., 45 id. ____, Decision No. 15,423; and Appeal of D.R., 45 id. ____, Decision No. 15,412.




     IT IS ORDERED that respondent make a new determination by August 22, 2006, whether petitioner’s granddaughter is entitled to attend respondent’s schools pursuant to 8 NYCRR �100.2(y), and in accordance with the Commissioner’s decisions in Appeal of Ayers, 45 Ed Dept Rep ____, Decision No. 15,425; Appeal of C.G., 45 id. ____, Decision No. 15,423; and Appeal of D.R., 45 id. ____, Decision No. 15,412.