Appeal of WILDA MARTINEZ, on behalf of her nephew ESTUARDO ISAAC ARAGON MARTINEZ, from action of the Dobbs Ferry Union Free School District regarding residency.

Decision No. 16,396

(August 21, 2012)

St. John’s University: St. Vincent De Paul Legal Program, Inc., attorneys for petitioner, Teresa J. Grogan, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Teresa J. Grogan, Esq., of counsel

GREY, Acting Commissioner.--Petitioner appeals the determination of the Dobbs Ferry Union Free School District (“respondent”) that her nephew, Estuardo, is not a district resident entitled to attend school in the district without the payment of tuition.  The appeal must be sustained.

According to petitioner, Estuardo previously resided in Guatemala with his parents.  Due to concerns over his safety after his father’s death in 2011, his mother sent Estuardo to reside with petitioner in January 2012.  On January 10, 2012, petitioner attempted to register Estuardo for first grade in respondent’s district.  On the district admission form for a legal guardian, petitioner asserted that they planned to reside together permanently at her home within the district.  Petitioner claimed “100% guardianship” but stated that she supports Estuardo 75% with his mother contributing the remainder; that Estuardo experienced a “traumatic event” and living with petitioner would provide him with safety and security; and that his mother had the right to recall him from petitioner “whenever she wants.”

By letter dated January 12, 2012, respondent’s Director of Finance and Facilities (“director”) notified petitioner that Estuardo was not a legal district resident and thus not entitled to attend the district’s schools.  The director based her determination on petitioner’s responses on the admission form and wrote that Estuardo would be excluded from attendance immediately.   This appeal ensued.  Petitioner’s request for interim relief was granted on February 22, 2012.

Petitioner argues that Estuardo is a resident of the district and is therefore entitled to attend its schools tuition-free.  Respondent argues that petitioner has failed to demonstrate a right to the relief sought and to establish the facts upon which she seeks relief

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; 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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

The record indicates that, on or about February 10, 2012, petitioner initiated a custody proceeding in Family Court, Westchester County.  The record also reflects that the court issued a temporary order granting petitioner custody until March 12, 2012.  This order was apparently later extended until further order of the court.  Based on respondent’s submissions in this matter, these court documents did not alter the district’s determination of nonresidency.

By letter dated June 5, 2012, petitioner requested that I consider an amended custody order from the Westchester County Family Court, dated May 23, 2012, granting petitioner joint custody with Estuardo’s mother and placing physical custody of Estuardo with petitioner.  This amended order specifically stated that it supersedes all prior custody orders concerning Estuardo.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  In this case, the amended custody order was not available at the time petitioner commenced the instant appeal and is relevant to the claims raised herein.  Therefore, I will accept this submission for consideration. 

The amended court order supersedes the temporary order and clearly awards joint custody of Estuardo to petitioner and his mother, and physical custody to petitioner.  I find that the amended court order is determinative for residency purposes (seeAppeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  Furthermore, the record indicates that Estuardo lives with petitioner and respondent does not argue that petitioner is not a district resident.  Therefore, petitioner has demonstrated that Estuardo 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 Estuardo Issac Aragon Martinez to attend school in the Dobbs Ferry Union Free School District without the payment of tuition. 

END OF FILE.