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Decision No. 17,098

Appeal of B.J., on behalf of her nephew M.H., from action of the Board of Education of the City School District of the City of Lockport regarding residency.

Decision No. 17,098

(June 16, 2017)

Harris Beach, PLLC, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Lockport (“respondent”) that her nephew (“the student”) is not a resident of the district and is, therefore, not entitled to attend its schools.  The appeal must be dismissed.

The record reflects that the student has two legal guardians: his stepfather and his maternal grandmother.  However, he has been living with his stepfather and it appears that it is his stepfather who has been acting as the student’s guardian.  Petitioner in this case is the student’s aunt.  The student attended respondent’s schools from December 2007 through January 2016.  In January 2016, the stepfather and the student moved out of the district, and the student began attending school in the Buffalo City School District.  On December 16, 2016, petitioner met with the secretary in the counseling department at respondent’s junior high school and requested to enroll the student. The student was immediately enrolled in the district pursuant to 8 NYCRR §100.2(y)(2) and began attending on December 20, 2016.  By letter dated December 19, 2016, the school’s principal informed petitioner that the district would make a residency determination within three business days and would review all documentation regarding residency submitted by petitioner on or before December 20, 2016. 

Petitioner submitted documentation to the district including a copy of a pending Family Court petition for custody, a “New York Minor (Child) Power of Attorney Form,” and a notice for petitioner to appear in Family Court regarding her custody petition on January 5, 2017.  By letter dated December 21, 2016,[1] the district’s assistant superintendent, who also serves as the residency officer, informed petitioner that she had reviewed the documentation submitted and determined that petitioner failed to demonstrate the student was a resident of the district because the documents confirmed that petitioner was not the parent or legal guardian of the student, and that the student’s legal guardian (stepfather) resided outside of the district and had not totally and permanently transferred custody and control to petitioner.  The letter stated that the student would be excluded from the district’s schools as of December 23, 2016. 

The assistant superintendent spoke with petitioner on December 28, 2016 regarding this matter.  Petitioner explained that she had filed the petition for custody of her nephew and was not sure what the outcome in family court would be.  The student’s biological parents, the student’s maternal grandmother, and the student’s step-father are all listed as respondents on the petition for custody.  Petitioner asked that the student be allowed to attend the district’s school until a determination was made by the family court on her petition for custody.  The assistant superintendent explained to petitioner that the district lacked the authority to allow the student to attend its schools under the circumstances.  This appeal ensued.  A request for interim relief was denied on January 10, 2017.

Petitioner asserts that she is the student’s paternal aunt and lives within the district.  Petitioner states that the student intends to reside with petitioner within the district “permanently.”  The petition contains conflicting statements that the student lives outside of the district and has lived there for 1 1/2 years, but also that the student has lived with petitioner in the district since December 15, 2016 and “has no other places of residency.”  Petitioner asserts that since 2013, the student’s stepfather, who lives outside of the district, has been his legal guardian, and that his biological parents have no legal custody or guardianship over the student.  Petitioner claims that the stepfather “willingly forfeited” his guardianship of the student to her on December 15, 2016.  Petitioner states that she provides food, shelter and clothing for the student pursuant to the power of attorney form.  Petitioner also states that there is an open Department of Social Services (“DSS”) case for the student regarding the stepfather.  Petitioner alleges that a caseworker at DSS communicated to petitioner that the stepfather’s living conditions were not sufficient for the student.  Petitioner further alleges that on December 20, 2016, a DSS caseworker visited her and the student at her in-district residence and that the residence was deemed appropriate for the student.  Petitioner states that the student has not been attending school or receiving educational services since December 23, 2016.

Respondent answers, contending that petitioner has failed to meet her burden to show that the district acted arbitrarily and capriciously in determining the student was not a district resident.  Specifically, respondent alleges that it is undisputed that at the time of the request for enrollment, petitioner was neither the parent nor legal guardian of the student.  Moreover, respondent contends that petitioner did not demonstrate that the legal guardians, including the maternal grandmother, totally and permanently transferred custody and control to petitioner, and that the power of attorney signed by the stepfather only granted custody on a temporary basis from December 15, 2016 through June 15, 2017.  Respondent further points to the Family Court petition for custody as evidence that the legal guardians had not relinquished control over the student.

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).

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).

In this case, it is undisputed that petitioner is not the student’s legal guardian.  The record is confusing, but it appears that the student has two legal guardians: his stepfather, with whom he had been living outside of the district until December 2016, and his maternal grandmother.  Petitioner has not proven that their guardianship has been terminated or that total custody, care and control of the student has been permanently transferred to petitioner.  Petitioner was set to appear in Family Court on January 5, 2017 regarding her petition for custody, which named the student’s biological parents, the maternal grandmother and the stepfather as respondents.  My Office of Counsel contacted petitioner regarding the outcome of this court appearance and was informed by petitioner that custody was not awarded to her at that time.

Regarding the power of attorney presented by petitioner as proof of transfer of care, custody and control, as noted by the district, this document is temporary in nature, expiring on June 15, 2017.  Therefore, it is no longer in effect.  Regardless, it is signed only by one of the two legal guardians of the student.  Moreover, the power of attorney does not appear to be valid in New York.  It does not include the specific language required for a statutory short form power of attorney pursuant to General Obligations Law §5-1513.  Additionally, it does not include the exact wording of the “Caution to the Principal” and “Important Information for the Agent” contained in §5-1513, as required by General Obligations Law §5-1501 B(1)(d), for a non-statutory power of attorney.   Therefore, this document does not confer complete custody, care and control of the student to petitioner (see Appeal of C.S, 54 Ed Dept Rep, Decision No. 16,697; Appeal of Chorro, 44 id. 50, Decision No. 15,095). 

Based on this record, I cannot find that petitioner has met her burden of proof or that the district’s decision to exclude the student was arbitrary and capricious.[2] 

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of the student in the future, should circumstances change, and to present any new information or documentation including, for example, an order from a court granting her legal guardianship over the student, for respondent’s consideration.




[1] The district’s residency officer stated in her affidavit that the December 21, 2016 letter was incorrectly dated December 15, 2016. 


[2] I note that although petitioner alleges that DSS found the stepfather’s living conditions to be inadequate and petitioner’s to be adequate, she provides no proof of these findings except for photocopies of DSS caseworker business cards and her own handwritten notes of the dates and times of the alleged meetings.  She also does not make any allegations that DSS investigated the student’s other legal guardian, his grandmother.