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Decision No. 15,661

Appeal of DENISE WARNER, on behalf of her nephew MICHAEL ROSEMOND, from action of the Board of Education of the Hicksville Union Free School District regarding residency.

Decision No. 15,661

(September 19, 2007)

Guercio & Guercio, attorneys for respondent, Raymond G. Keenan, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Hicksville Union Free School District (“respondent”) that her nephew, Michael, is not a district resident.  The appeal must be dismissed.

Michael is 14 years old and began residing with petitioner on Maxwell Drive in Westbury on August 1, 2006.  On September 1, 2006, petitioner requested Michael’s admission to respondent’s schools for the 2006-2007 school year.  Respondent’s director of special education and pupil personnel services (“director”) denied petitioner’s request and held a hearing on September 5, 2006, at which Michael’s mother participated by telephone from Georgia and stated that she continued to provide financial support for her son.  By letter dated September 5, 2006, the director determined that Michael was not eligible for enrollment. 

On September 8, 2006, Michael again requested admission and the director learned that petitioner filed a petition for guardianship in Nassau County Family Court.  At a second hearing on September 13, 2006, petitioner and Michael’s mother testified that custody and parental control had not been transferred.  By letter dated September 14, 2006, the director again denied the application for Michael’s admission to respondent’s schools.  This appeal ensued.  Petitioner’s application for interim relief was denied on September 21, 2006.  Thereafter, a series of court orders appointed petitioner temporary guardian of Michael through the end of the 2006-2007 school year and respondent permitted him to attend school throughout that period.  The most recent court order expired on August 2, 2007 and no further order was issued. 

Petitioner contends that Michael is a district resident and is entitled to attend respondent’s schools tuition-free.  Respondent contends that Michael is presumed to reside with his mother in Georgia and that this presumption is not rebutted by the alleged transfer of his custody.

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).

Following the issuance of the first guardianship order, respondent permitted Michael to attend its schools as a resident student, and permitted his attendance until the end of the 2006-2007 school year pursuant to the series of subsequent orders.  The last order expired on August 2, 2007 after petitioner failed to appear in Family Court.  By letter dated August 6, 2007, respondent’s counsel advised that Michael’s siblings were all withdrawn from the district over the summer because the family was moving and suggested that Michael had also left the district.  Petitioner did not respond to this correspondence and my Office of Counsel has been unable to reach petitioner at the only telephone number she provided.    

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  The 2006-2007 school year has concluded, petitioner’s legal guardianship has ended, and it appears that Michael and his family have left the district.  Under these circumstances, the appeal must be dismissed as moot.