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Decision No. 17,901

Appeal of F.S. and J.S., on behalf of their grandchildren A.S. and A.S., from action of the Board of Education of the Tuckahoe Union Free School District regarding residency.

Decision No. 17,901

(August 5, 2020)

Keane & Beane, P.C., attorneys for respondent, Susan E. Fine, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioners challenge the determination of the Board of Education of the Tuckahoe Union Free School District (“respondent”) that their grandchildren, A.S. and A.S. (“the students”), are not district residents.  The appeal must be dismissed.

Prior to the events leading to this appeal, the students lived with their mother in respondent’s district and attended respondent’s schools.  Following an incident in June 2018, when the students’ mother allegedly exhibited signs of intoxication while picking up the students from school, child protective services removed the students from the mother’s care and placed them in the temporary custody of petitioners.  Petitioners reside outside of respondent’s district in Yonkers, New York (the “out-of-district address”), while the students’ mother continues to reside at an apartment within respondent’s district (the “in-district address”). 

On or about May 21, 2019, Family Court, Westchester County, issued a custody order on consent (the “custody order”), awarding “sole physical custody” of the students to petitioners and “joint legal custody” of the students to petitioners and the students’ parents.[1]  The custody order further provides that petitioners “shall have sole decision making authority relating to the [students’] health, education and welfare.”  Additionally, the custody order mandates that the students’ mother “comply with all of the recommendations ... contained in [a physician’s] report to the Court,” including that she participate in a substance abuse program “until successfully discharged,” attend Alcoholics Anonymous, and comply with alcohol use monitoring under the physician’s supervision for “12 consecutive months.”  The custody order permits the mother to have supervised visitation with one of the students and to have “access” with the other student “as initiated by [the student], and upon the recommendation of said [student’s] treating therapist.”  As relevant here, the custody order is not a temporary order, nor does it indicate that its award of sole physical custody to petitioners is in any way conditional or time-limited.

By letter dated January 3, 2020, respondent’s assistant superintendent for curriculum, instruction and technology notified petitioners of her determination that the students were not district residents and, therefore, would be excluded from the district’s schools effective January 21, 2020.  This appeal ensued.  Petitioners’ request for interim relief was denied on February 3, 2020.

Petitioners assert that the students are district residents because they only “temporarily live” with petitioners at the out-of-district address until their mother completes her court-ordered requirements in May 2020.  “[A]t [that] point,” petitioners argue, the students “will be returned to their legal residence,” which they assert is the in-district address.  In support of this contention, petitioners submit copies of the custody order and a lease amendment, dated December 1, 2019, for the in-district address that lists the students as members of the mother’s household.  Petitioners further aver that the students have maintained a relationship with their mother consisting of “frequent visits, ... daily telephone contact as well as special events, holidays, and occasions,” with the visits taking place at the in-district address.  Petitioners seek a determination that the students are entitled to attend respondent’s schools as residents without payment of tuition.

Respondent contends that petitioners have not met their burden of establishing that the students are district residents.  Respondent avers that its decision to exclude the students from its schools was reasonable because “[n]othing in the [c]ustody [o]rder indicates that the grant of physical custody and decision-making authority to [p]etitioners was temporary.”

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  A child’s residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, rev’d on other grounds, 77 NY2d 552 (1991); Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

Custody may be legally transferred from a parent to a third party by obtaining a court order 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 Foskey, 56 Ed Dept Rep, Decision No. 16,933; Appeal of Naab, 48 id. 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801).  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 an 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

On this record, I cannot find that petitioners have met their burden of establishing that the students are residents of respondent’s district.  It is undisputed that the students live at the out-of-district address with petitioners, who, pursuant to the custody order, exercise sole physical custody over the students, possess exclusive authority to make educational decisions on their behalf, and exercise “joint legal custody” with the students’ parents.  Petitioners’ sole argument in support of their claim of the students’ residency in the district is that the custody arrangement is “temporary”, and that custody will return to the students’ mother after she completes a court-mandated substance abuse program in May 2020.  However, there is nothing in the custody order, or elsewhere in the record, to support this contention (compare Appeal of L.M., 59 Ed Dept Rep, Decision No. 17,768 [time-limited and conditional nature of custody documents defeated claim of total transfer of custody and control]). 

Although the custody order dictates that the students’ mother must comply with alcohol screenings “for 12 consecutive months,” among other requirements, the award of custody to petitioners is not conditioned on the mother’s compliance with such terms.[2]  Additionally, the fact that the students’ mother maintains a relationship with the students does not negate the students’ residence with petitioners as their court-ordered custodians (Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933; Appeal of D.R., 45 id. 550, Decision No. 15,412).  Thus, petitioners have not met their burden of proving that the students reside within respondent’s district.

While I am sympathetic to petitioners’ and the students’ circumstances, I cannot find on this record that respondent’s residency determination was arbitrary or capricious.  Although the appeal must be dismissed for the reasons described above, I note that petitioners and/or the students’ parents have the right to reapply for admission to respondent’s schools on behalf of the students at any time should the students’ guardianship status or other circumstances change and to submit any documentary evidence for respondent’s consideration.




[1] The custody order explains that this four-way joint legal custody requires petitioners “to keep the [students’] parents ... informed as to all majors [sic] issues relating to the [students’] health, education and welfare ....”


[2] I further note that there is no evidence in the record to establish that the students’ mother has in fact satisfied the terms of the custody order.