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Decision No. 15,434

Appeal of E.J., on behalf of her grandson J.J., from action of the Board of Education of the Bay Shore Union Free School District regarding residency.


Decision No. 15,434


(August 1, 2006)


Ingerman Smith, L.L.P., attorneys for respondent, Anna M. Scricca, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that her grandson, J.J., is not a district resident.  The appeal must be dismissed.

Prior to July 2005, J.J. lived with his mother and attended school in the Brentwood Union Free School District (“Brentwood”).  During the 2004-2005 school year, J.J. attended a residential center due to an altercation with another student.  In July 2005, J.J. moved in with petitioner and her husband, who are district residents.  On August 26, 2005, petitioner requested that J.J. be admitted to respondent’s high school for the 2005-2006 school year.

By letter dated August 30, 2005, respondent’s Coordinator of Central Registry and Attendance (“coordinator”) determined that J.J. was not a district resident.  On September 1, 2005, J.J.’s mother met with the coordinator and submitted a parental affidavit which she had signed, and a custodial affidavit signed by petitioner.  The parental affidavit stated that J.J. was residing with his grandparents for two reasons -- to afford him a second chance with his education and sports and to assist her father, who was recovering from a stroke.  J.J.’s mother also submitted a notarized statement that purported to give temporary guardianship of J.J. to his grandparents from July 7, 2005 through July 2007.  The custodial affidavit also stated that J.J. would stay with his grandparents for two years, until he completed high school, during which time she would provide for him and assume full responsibility for all matters regarding his education and medical care.


Respondent refused to admit J.J. to its schools and this appeal ensued.  Petitioner’s request for interim relief was denied on September 15, 2005.

Petitioner claims that J.J. resides with her and is needed in the household to help care for her husband.  She contends that she will provide for all his food, shelter and other necessities, as well as be responsible for his education and medical care.

Respondent alleges that petitioner has no standing to bring this appeal.  It also claims that J.J.’s mother has not relinquished care and custody of her son, and that the primary reason for J.J.’s move to petitioner’s home is to take advantage of respondent’s schools.

I will first address the issue of standing.  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). In this case petitioner, a district resident, brings this appeal on behalf of her grandson, who she alleges resides with her and who she attempted to enroll in respondent’s schools.  Thus, petitioner has standing (Appeal of Thomas, 41 Ed Dept Rep 84, Decision No. 14,622).

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).

     The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

     A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

     Petitioner’s evidence of residency is essentially limited to the conclusory statements of petitioner and J.J.’s mother that J.J. resides with petitioner, that petitioner supports J.J. and that J.J.’s mother has relinquished custody and control to petitioner.

     Respondent produced a letter dated August 24, 2005 in which J.J.’s mother informed respondent that before her father’s stroke, he had offered to take J.J. into his home in order to give him a fresh start at a new school.  She stated that they felt it would be unproductive for J.J. to return to Brentwood.  She also stated that she planned to be an active participant in her son’s education.  In the parent and custodial affidavits submitted to respondent by petitioner and her daughter, both refer to the transfer of custody as temporary, lasting only through J.J.’s high school tenure.  Furthermore, by letter dated August 17, 2005, J.J.’s mother wrote that she had given temporary guardianship of J.J. to her parents for the period of July 7, 2005 through July 2007.

     On the record before me, I conclude that petitioner has failed to demonstrate that there has been a total and permanent transfer of custody and control to petitioner and thereby rebut the presumption that J.J. resides with his mother.  Accordingly, respondent’s determination was not arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of her son at any time should circumstances change (Appeal of Holder, 44 Ed Dept Rep 32, Decision No. 15,088; Appeal of Normandin, 43 id. 153, Decision No. 14,950).