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Decision No. 18,536

Appeals of MILAGROS RIVERA, on behalf of two children, from action of the Board of Education of the Smithtown Central School District regarding residency.

Decision No. 18,536

(December 17, 2024)

Ingerman Smith, LLP, attorneys for respondent, Ellen M. Vega, Esq., of counsel

ROSA., Commissioner.--In two separate appeals, petitioner challenges determinations of the Board of Education of the Smithtown Central School District (“respondent”) that participants in an exchange program (the “students”) are not district residents.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioner resides in respondent’s district.  At the time of the events discussed herein, the students lived with her to attend an exchange program at a nonpublic school.  According to the petition, the students will return to their home countries at the end of the 2024-2025 school year. 

In August 2024, petitioner requested transportation for the students to the nonpublic school.  Respondent denied the requests on the basis that the students were not district residents.  These appeals ensued.  Petitioner’s requests for interim relief were denied on September 24, 2024.

Petitioner argues that respondent should provide the students with transportation to the nonpublic school as they reside within the district.

Respondent contends that its determination was appropriate because the students, while physically present within the district, do not intend to remain therein.  Respondent further asserts that the students’ parents have not relinquished custody of the students to petitioner.

Pursuant to Education Law § 3635, school districts must provide transportation to resident students within certain mileage limitations.  School districts are not required to provide transportation to non-residents (Appeals of Ward, 60 Ed Dept Rep, Decision No. 17,944; Appeal of G.S., 56 id., Decision No. 17,083).  Residence is established by one’s physical presence and intent to remain within a school district (Appeals of Ward, 60 Ed Dept Rep, Decision No. 17,944 see generally Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385 [2004]). 

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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  This presumption can be rebutted upon a determination that the parent or guardian has executed a total, and presumably permanent, transfer of custody and control of the child to a third party (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  Although a formal transfer of custody and control through a guardianship or Family Court proceeding is not required to establish a child’s residency for purposes of Education Law § 3202, the evidence must demonstrate that the child’s permanent residence is within the district and that the individual exercising custody and control of the child has full authority and responsibility with respect to the child’s support and care (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has not met her burden of proving that the students are district residents entitled to transportation.  The record reflects that the students are staying with petitioner to take part in a non-board approved foreign exchange program.[1]  The students possess J-1 visas, which “are nonimmigrant visas for individuals approved to participate in exchange visitor programs in the United States.”[2]  The record supports a determination that the students are in respondent’s district temporarily and that no transfer of custody and control has occurred (Appeals of Chalk, 60 Ed Dept Rep, Decision No. 17,945; Appeals of Ward, 60 id., Decision No. 17944).[3]  Accordingly, respondent appropriately determined that the students were not entitled to transportation (Appeal of D.B., 64 Ed Dept Rep, Decision No. 18,488; Appeal of Constantino, Jr., 59 id., Decision No. 17,764).  

THE APPEALS ARE DISMISSED.

END OF FILE

 

[1] “[A] board of education may prescribe the terms and conditions under which it decides to admit nonresident students, including foreign exchange students” (Appeal of Botsakos, 56 Ed Dept Rep, Decision No. 17,093; see also Appeal of Stewart, 56 Ed Dept Rep, Decision No. 17,000; Appeal of Volk, 43 id. 186, Decision No. 14,964).

 

[2] See “Exchange Visitor Visa,” U.S. Dept. of State, available at https://travel.state.gov/content/travel/en/us-visas/study/exchange.html [last visited Dec. 6, 2024]).

 

[3] Petitioner does not assert that the students’ parents have transferred custody and control of the students to her.