Appeal of JENNIFER NAAB, on behalf of CHRISTOPHER WILLIAMS, from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 15,924

(May 22, 2009)

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

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

Petitioner, a district resident, asserts that Christopher is a family friend, that she is his guardian and that he resides with her.  In September 2008, petitioner enrolled Christopher in respondent’s schools.  By letter dated, September 22, 2008, the district’s coordinator of student services (“coordinator”) requested that petitioner submit all information concerning Christopher’s residency status to her by September 26, 2008.  By letter dated October 15, 2008, the coordinator notified petitioner that she had determined that Christopher was not a district resident and that he would be excluded from respondent’s schools effective October 27, 2008.  Petitioner’s request for interim relief was denied on October 31, 2008.

On January 12, 2009, the Erie County Surrogate’s Court issued a Decree and Letters of Guardianship appointing petitioner as Christopher’s legal guardian.  In March 2009, respondent’s attorney acknowledged receipt of the Guardianship appointment but the district continues to exclude Christopher from its schools.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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, the Commissioner will not look behind the court’s decision to determine whether the custody transfer is bonafide (Appeal of a Student with a Disability, 46 Ed Dept Rep 436, Decision No. 15,556; Appeal of a Student with a Disability, 46 id. 60, Decision No. 15,441; Appeal of D.R., 45 id. 550, 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 a Student with a Disability, 46 Ed Dept Rep 436, Decision No. 15,556; Appeal of a Student with a Disability, 46 id. 60, Decision No. 15,441; Appeal of D.R., 45 id. 550, Decision No. 15,412).

A valid court order has been issued transferring legal custody of Christopher to petitioner, who resides within the district.  Since the record indicates Christopher lives with petitioner, I find that the court order is determinative for residency purposes (seeAppeal of D.R., 45 Ed Dept Rep 550, Decision No. 15,412).  Therefore, petitioner has demonstrated that Christopher is a district resident entitled to attend respondent’s schools tuition free.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit Christopher Williams to attend school in the Williamsville Central School District without the payment of tuition.

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