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Decision No. 15,447

Appeal of G.M-H., on behalf of J.P.T., from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.


Decision No. 15,447


August 21, 2006


Hodgson Russ, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel


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

In September 2005, J.P.T. attended the 11th grade at respondent’s high school.  At that time, the district began an investigation regarding his residency and that of his brother, Q.J., after a staff member observed them at the beginning of a school day exiting a Metro bus near the school campus.  The use of the Metro bus suggested to the staff member that the brothers resided in the City of Buffalo, outside the district.

On September 20, 2005, J.P.T.’s mother, Ms. T-M., presented a hand-written notarized note to the district registrar stating that J.P.T. was residing with petitioner’s family in Cheektowaga, within the district.  The registrar notified the superintendent, who met with Ms. T-M.  Ms. T-M. stated that in May 2005 she moved from the district to Buffalo, but that J.P.T. wanted to continue to live in the district with petitioner, a family friend.

By letter dated September 21, 2005, the Erie County Surrogate’s Court notified the district that a Petition for Guardianship of J.P.T. had been filed seeking to have Letters of Guardianship issued to petitioner.  By letter dated October 6, 2005, the superintendent found that the Guardianship Petition was solely for the purpose of continuing J.P.T.’s attendance at the district’s schools.  He determined, therefore, that J.P.T. was not eligible to attend school in the district and that he would be excluded from school effective October 28, 2005.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 28, 2005.

Petitioner asserts that J.P.T. has resided with her since approximately June 1, 2005, and intends to reside with her indefinitely.  Petitioner states that J.P.T. had experienced many conflicts with his mother and spent a lot of time at her home because J.P.T. and her son are best friends.  She asserts that she, J.P.T. and his mother jointly decided that petitioner’s home would be a less stressful and more conducive academic environment.  She seeks a determination that J.P.T is a district resident and entitled to attend the district’s school without the payment of tuition.

Respondent asserts that the residency determination was reasonable and made in good faith after consideration of all the evidence obtained during the district’s investigation.  According to the superintendent, Ms. T-M stated that she was not surrendering guardianship or parental responsibility for J.P.T.; that she would continue to claim him as a dependent for tax purposes; that his father, from whom she was separated, would continue to provide J.P.T. health insurance; and that J.P.T.’s brother, Q.J., was living with her and attending school in Buffalo. 

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).

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).

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 has failed to establish that custody has been legally transferred pursuant to a court order.  Pursuant to �276.5 of the Commissioner’s regulations, my Office of Counsel sent a letter to petitioner asking whether she had, in fact, been awarded guardianship of J.P.T. by the Erie County Surrogate’s Court, and if so, requested that she forward a copy of the court order.  Petitioner was given until June 16, 2006 to reply.  Petitioner did not respond to this request or otherwise produce evidence of a final court order.

In the absence of a court order, residency must be determined by the traditional tests of physical presence within the district and intent to remain there.  Petitioner admitted in the petition that she and her family agreed that J.P.T. would reside with her only on a temporary basis.  Petitioner did not submit a reply and there is no other evidence refuting the superintendent’s affidavit that J.P.T.’s mother stated that she was not surrendering custody and control of J.P.T.  Furthermore, J.P.T.’s mother admitted that she lives outside the district.  Under these circumstances, I find that respondent’s determination was reasonable and therefore, I find no reason to set it aside.  While the appeal must be dismissed, I note that petitioner may reapply to the district for J.P.T.’s admission should a court order be issued (seeAppeal of C.G., 46 Ed Dept Rep ___, Decision No. 15,423).