Decision No. 17,193
Appeal of SAM HEALEY and KRISTEN LINDBERG, on behalf of SAMUEL MASTERS, from action of the Board of Education of the Rye Neck Union Free School District regarding residency.
Decision No. 17,193
(September 27, 2017)
Barger and Gaines, attorneys for petitioners, Paul N. Barger and Alison B. Cohen, Esqs., of counsel
Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Rye Neck Union Free School District (“respondent”) that Samuel Masters is not a district resident. The appeal must be dismissed.
The record reflects that in August 2015, petitioners requested admission to respondent’s schools for a family friend, Samuel Masters. Samuel’s cousins, Rachel Cavell and Norton Batkins (the “guardians”) are Samuel’s legal guardians. Petitioners reside in respondent’s district but the guardians do not. In support of their request for Samuel’s admission, petitioners submitted a “Form to Designate Parental Relationship” (“form”) from the guardians to petitioners dated August 11, 2015 and a “custodial affidavit” sworn to by petitioner Healey on August 11, 2015. The form delegated petitioners the authority to make various educational decisions for Samuel for a period of six months, while the custodial affidavit indicated that Samuel would reside with petitioners for at least one year, after which a decision would be made regarding a permanent arrangement. At that time, in August 2015, respondent’s superintendent of schools (“superintendent”) requested that petitioners complete the district’s “Affidavit of Legal Responsibility (Custodial)” which contains more information than the documents previously submitted. In the affidavit sworn to and submitted to respondent on August 25, 2015, petitioners also state that the duration of the living arrangement would be at least one year, after which a decision would be made on whether it would continue indefinitely. The superintendent also had several telephone conversations and email communications with petitioners and the guardians regarding Samuel. On August 31, 2015, the superintendent received a letter by email from the guardians further explaining Samuel’s situation and stating that they would not be giving up guardianship of Samuel and the reasons for their decision.
The record indicates that prior to Labor Day, 2015, the superintendent called Cavell to advise her that Samuel would not be admitted to respondent’s schools.
By letter dated September 2, 2015, the superintendent notified Cavell that because the guardians would retain guardianship and the documentation submitted indicated that petitioners would be assuming the care, custody and control of Samuel for only one year, there was not a total and permanent transfer of custody and control. Therefore, no permanent residence or intent for Samuel to remain within the district was established and Samuel was therefore not a district resident.
On September 10, 2015, the superintendent received correspondence from an attorney representing Samuel’s interests. In a subsequent telephone conversation, the attorney was advised by the district’s counsel of the deficiencies in the documents previously submitted to respondent.
On September 22, 2015, revised affidavits were submitted by petitioners and the guardians in support of Samuel’s enrollment in the district. An “Affidavit of Legal Responsibility (Parents)” dated September 21, 2015, indicates that the guardians will provide medical, dental and clothing to Samuel, that Samuel will remain with petitioners “throughout high school” and that the guardians are willing to provide tuition for Samuel at the Blind Brook School if necessary. An “Affidavit of Legal Responsibility (Custodial)” dated September 22, 2015, submitted by petitioners, indicates that the duration of the living arrangement will be “for the rest of Sam’s high school years, and as needed thereafter.” The custodial affidavit also indicates that petitioners will “provide Sam with room and board, and will pay for anything he needs for school and life [and] make medical decisions for Sam.” Finally, the custodial affidavit indicates that petitioners will pay for Samuel to attend a local school if necessary.
By letter dated September 29, 2015, the superintendent notified Cavell and petitioners that because Samuel’s residence with petitioners was not permanent and because the guardians were providing Samuel with clothing, there was not a permanent and complete transfer of custody and control of Samuel for residency purposes. This appeal ensued.
Petitioners maintain that even though the guardians have not and do not intend to surrender guardianship over Samuel, they relinquished their parental rights and responsibilities to petitioners. Petitioners maintain that they intend to support Samuel for the duration of Samuel’s residence in their home and that Samuel does not reside with them solely to attend respondent’s schools.
Respondent contends that Samuel’s living arrangement with petitioners is not permanent and that the guardians have maintained custody and control over Samuel. Respondent maintains that petitioners have failed to meet their burden of establishing a clear legal right to the relief requested.
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).
Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see 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). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820).
Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).
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).
On this record, petitioners have not established that the guardians have made a total and permanent transfer of Samuel’s custody and control to them. In August 2015, petitioners and the guardians initially submitted conflicting statements regarding the duration of Samuel’s residence with petitioners indicating that it would be for at least one year and six months, respectively. As a result, petitioners were asked to submit an “Affidavit of Legal Responsibility (Custodial)” in which it was again indicated that the duration of the living arrangement would not be permanent but would instead be “at least one year, after which a decision will be made as to whether [Samuel] will stay indefinitely.” Moreover, on August 31, 2015, the superintendent was notified by the guardians that they had no intention of giving up their guardianship of Samuel. In September 2015, petitioners and the guardians attempted to correct the deficiencies in the documents previously submitted but again failed to show that there had been a total and permanent transfer of custody and control of Samuel to petitioners. The documents submitted to respondents by the guardians in September 2015 indicate that the guardians will provide medical, dental, clothing and private school tuition for Samuel, and that Samuel will remain with petitioners only throughout high school. Although the September 2015 custodial affidavit submitted by petitioners indicates that petitioners will provide Samuel with room and board and tuition if necessary and make medical decisions, it is insufficient to establish a total and permanent transfer of custody and control given the guardians’ statements regarding their control over Samuel’s care and their unwillingness to surrender guardianship of Samuel.
Based on the totality of the record before me, I find that respondent’s determination that Samuel is not a district resident is neither arbitrary nor capricious. The evidence proffered by petitioners and the guardians is replete with contradictions and petitioners have not demonstrated that the guardians have relinquished parental custody and control of Samuel.
Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to the district on Samuel’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The form appears to be intended as a designation of a person in parental relation pursuant to General Obligations Law §5-1551. General Obligations Law §5-1555 provides that such a designation does not affect residency for purposes of the Education Law.
 I note that the “Affidavits of Legal Responsibility (Custodial)” do not comply with the requirements for a power of attorney under Article 15 of the General Obligations Law (see Appeal of B.J., 56 Ed Dept Rep, Decision No. 17,098). Though respondent has not raised the issue, petitioners have not explained the legal basis for concluding that such documents could transfer custody and control of Samuel from the legal guardians if they are not valid powers of attorney.