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Decision No. 16,767

Appeal of B.S., on behalf of his nephew J.S., from action of the Board of Education of the City School District of the City of Middletown regarding residency.

Decision No. 16,767

(June 9, 2015)

Children’s Rights Society, Inc., attorneys for petitioner, Karen A. Riley, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, John A. Miller, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Middletown (“respondent”) that his nephew, J.S., is not a district resident.  The appeal must be dismissed. 

Petitioner is a resident of respondent’s district.  According to petitioner, during the 2013-2014 school year, his twelve-year-old nephew, J.S., began living with him in respondent’s district after previously residing with his parents in India.  Petitioner claims that J.S.’s living situation with his parents was abusive and that, in or about October 2013, J.S. began living separate and apart from his parents when they sent him to the United States to work in a gas station.  Petitioner asserts that J.S. has had no communication with or support from his parents since his arrival in the United States and that J.S. intends to permanently reside with him at his residence in respondent’s district.

On December 11, 2013, petitioner initiated a proceeding in family court for his appointment as guardian for J.S.[1]  On January 6, 2014, petitioner registered J.S. for enrollment into respondent’s schools. By letter dated January 17, 2014, respondent denied petitioner’s enrollment request on the grounds that J.S. was not a legal resident of respondent’s district.  On or about May 5, 2014, petitioner’s wife attempted to reapply for J.S.’s enrollment in respondent’s schools and J.S. was again denied admission on the basis that he is not a legal resident of respondent’s school district because petitioner’s guardianship proceeding was still pending. 

On or about June 5, 2014, petitioner again sought to enroll J.S. in respondent’s schools and was advised that respondent would not enroll J.S. until the guardianship proceeding was resolved. This appeal ensued.  Petitioner’s request for interim relief was granted on July 3, 2014.

Petitioner contends that J.S. resides permanently with him and that J.S.’s parents have not communicated with or supported J.S. in any way since his arrival in the United States.  Petitioner requests a determination that J.S. is a resident of respondent’s district and is entitled to attend its schools without the payment of tuition.  Petitioner also seeks placement of J.S. in respondent’s 2014 summer school program.

Respondent asserts that the appeal must be dismissed as untimely and as moot pending the outcome of petitioner’s guardianship proceeding.  Respondent maintains that its residency determination was in all respects proper and that J.S. was not entitled to enroll in the district absent an order from the family court designating petitioner as J.S.’s legal guardian.

Education Law §3202(1) provides, in pertinent part, as follows:

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 bona fide (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).

By letter dated November 10, 2014, petitioner’s counsel provided my Office of Counsel with an order of guardianship dated August 28, 2014, appointing petitioner as J.S.’s guardian.  According to an affidavit from respondent’s instructional leader for Secondary Special Education, submitted pursuant to 8 NYCRR §276.5(a), J.S. was enrolled in the district’s schools in September 2014 pursuant to the stay order issued in this matter, and will be permitted to continue to attend its schools pursuant to the order of guardianship, which it received on October 27, 2014.

The appeal must be dismissed as moot.  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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Subsequent events have rendered moot the circumstances of this case.  Specifically, a valid court order has been issued transferring guardianship of J.S. to petitioner and respondent has admitted J.S. to the schools of the district.  Thus, while the court order is in effect, I find that J.S.’s residency is in the district.  Therefore, no meaningful relief may be granted and the appeal must be dismissed.

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




[1] On or about March 20, 2014, respondent filed a motion to intervene in petitioner’s family court proceeding.  By letter dated May 12, 2014, respondent withdrew its motion.