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Decision No. 15,435

Appeal of JAMES RICCINTO, on behalf of his niece JENNA BONTEMPI, from action of the Board of Education of the Syosset Central School District regarding residency.


Decision No. 15,435


(August 1, 2006)


Law Offices of Vanessa M. Sheehan, attorneys for respondent, Randy Glasser, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Syosset Central School District (“respondent”) that his niece, Jenna, is not a district resident.  The appeal must be dismissed.

Since September 1998, Jenna has attended respondent’s schools.  Until 2005, Jenna lived with one or both parents in a home located in respondent’s district.  In July 2005, Jenna’s parents divorced and Jenna’s mother received sole custody.  Because of financial difficulties, their house was transferred to Jenna’s uncle and Jenna’s mother moved outside the district.  Jenna continued to reside in the house with her uncle and her grandmother.  According to her mother, Jenna remained with her relatives for financial reasons and her emotional well-being.

In late August 2005, Jenna’s mother notified respondent that she was removing her younger son from the district and that he would be attending school in Hicksville where she resided in an apartment. Based upon this information, by letter dated January 11, 2006 addressed to Jenna’s parent or guardian, respondent advised that a hearing was to be held on January 19, 2006 to determine if Jenna was a resident of the district.  The residency hearing was held on the appointed date, and on January 23, 2006, the hearing officer rendered a decision that Jenna was not a district resident.  The hearing officer’s decision was based upon a determination that Jenna’s parents had not relinquished complete custody and control of Jenna to petitioner.   This appeal ensued.  Petitioner’s request for interim relief was denied on February 9, 2006.

Petitioner argues that Jenna’s parents have surrendered temporary parental control of Jenna to him.  Additionally, he asserts that because Jenna resides with him in respondent’s district, she is a resident entitled to attend respondent’s schools without the payment of tuition. 

Respondent contends that the appeal should be dismissed because the hearing officer’s decision was rationally based and not arbitrary and capricious.  Petitioner also contends that petitioner has no standing to bring this appeal, that the appeal should have named Jenna’s mother as a necessary party, and that I disregard an affidavit submitted by Jenna’s grandmother.

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’s niece has been enrolled in and attended respondent’s schools since 1998 as a resident of the same household.  Additionally, there is no dispute that petitioner is a resident of respondent’s school district.  A child residing in his household for whom the presumption of parental residence has been rebutted may attend district schools tuition-free.   Petitioner alleges that Jenna’s parents have transferred parental control of Jenna to him, and I therefore find that petitioner has standing to challenge respondent’s actions (Appeal of Beska, 39 Ed Dept Rep 661, Decision No. 14,344).

Respondent also argues that the appeal should be dismissed for failure to join Jenna’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) In this matter, Jenna’s mother submitted a statement clearly supporting petitioner’s appeal.  It is evident that her desire is to have Jenna continue attendance at respondent’s schools and therefore her rights would not be adversely affected by a determination in favor of petitioner.

The appeal, however, must be dismissed on the merits.  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).

In an appeal to the Commissioner, a 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; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

Upon my review of the record, I agree that the hearing officer’s decision is not arbitrary or capricious.  The evidence at the hearing established that Jenna’s parents provide her with almost all of her needs other than housing. 

Petitioner relies heavily on a power of attorney to argue that he is Jenna’s temporary guardian and that he therefore has custody and control over Jenna. Although a power of attorney may be considered when arguing a transfer of custody, it is not the equivalent of a court ordered transfer of custody (seeAppeal of D.R., 45 Ed Dept Rep ___, Decision No. 15,412). Further, in a statement attached to the petition, Jenna’s mother admits that she hopes to establish a permanent residence within respondent’s district within one year, thereby admitting that she is not permanently transferring custody and control of Jenna to petitioner. 

Since petitioner has not established that there has been a total and permanent transfer of custody and control, I find that respondent’s residency determination is not arbitrary, capricious or unreasonable.  In light of this disposition, I need not address the parties’ remaining contentions.