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Decision No. 15,441

Appeal of a STUDENT WITH A DISABILITY, by his custodian, from action of the Board of Education of the McGraw Central School District regarding residency.


Decision No. 15,441


(August 7, 2006)


Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, John P. Lynch, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the McGraw Central School District (“respondent”) that her brother (the “student”) is not a district resident.  The appeal must be sustained.

Prior to the commencement of this appeal, the student resided with his parents in New York City.  In 2005, the student moved to live with petitioner, in respondent’s district.

In August 2005, the student was enrolled in respondent’s schools.  At that time, the student’s mother indicated that she and the student resided with petitioner in respondent’s district.  Thereafter, the district’s administration began to investigate the student’s residency.  Respondent’s investigation revealed that the student’s mother actually resided in New York City.

Thereafter, petitioner provided the district with a copy of an Order of Custody/Visitation Upon Agreement dated September 19, 2005 (the “Order”) from the Cortland County Family Court.  The Order granted petitioner and the student’s parents joint legal custody of the student.  The Order also granted physical custody and primary residence of the student to petitioner, with liberal visitation to the student’s parents.  Under the Order, petitioner must remain within respondent’s district as long as she has physical custody of the student and he is under the age of 21.  The Order also provides that both petitioner and the student’s parents have the right of access to educational and medical records as well as direct access to educational personnel and medical providers and others providing services to the student.

By letter dated September 23, 2005, respondent’s superintendent notified petitioner that the district’s investigation suggested that the student was not a district resident and offered petitioner, her family and attorney the opportunity for a hearing to present additional information.  Following a hearing, respondent’s superintendent notified petitioner of her final determination that the student was not a district resident and would be excluded from school after October 7, 2005.  This appeal ensued.  Petitioner’s request for interim relief was granted on November 14, 2005.

Petitioner contends that the student resides with her within respondent’s district and should be permitted to attend its schools.  Petitioner states that the student has a disability and experienced difficulties living with his parents.  She claims that her parents work long hours and are unable to spend the necessary amount of time with the student and are unable to ensure his physical safety and emotional well-being.  After the student became depressed, petitioner contends that she and her parents decided that he should live with her.  Petitioner asserts that she provides for the student financially and will have him placed on her health insurance plan when she obtains insurance from her employer.

Respondent argues that petitioner failed to name the student’s parents as necessary parties.  Respondent further contends that the student’s parents continue to provide financial assistance for the student and that he continues to be covered by their health insurance policy.  Respondent claims that the student resides with petitioner to take advantage of respondent’s schools.

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 the parents’ rights with respect to the student 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 them as necessary parties.

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).  These principles also apply when a parent or guardian decides to share custody of a child pursuant to a court order.

In the instant appeal, the Order clearly awards joint legal custody to petitioner and the student’s parents.  Moreover, the Order further awards petitioner physical custody and primary residence of the student.  Accordingly, I will not look behind the Order, but rather respect it as dispositive that petitioner has joint legal custody of the student with his parents and that petitioner has sole physical custody of the student.

It is not disputed that the student actually lives with petitioner.  The fact that the student’s parents maintain a relationship with him and retain visitation and other rights does not negate the child’s physical residence as stated in the Order.  Thus, the student’s relationship with his parents through visitation or involvement in the child’s schooling is not determinative (Appeal of D.R., 45 Ed Dept Rep ___, Decision No. 15,412; Appeal of B.H., 45 id. 166, Decision No. 15,291).

Accordingly, I find that for the purposes of attending school tuition-free, the student is a resident of respondent’s school district.




IT IS ORDERED that respondent allow the student to attend school in the McGraw Central School District without the payment of tuition.