Appeal of N.L., on behalf of his nephew, from action of the Board of Education of the Guilderland Central School District regarding residency.

Decision No. 18,597

(July 21, 2025)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Beth L. Harris, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Guilderland Central School District (“respondent”) that his nephew (the “student”) is not a district resident.  The appeal must be dismissed.

Prior to this appeal, the student resided with his parents in Massachusetts.  In January 2025, the student began living with petitioner, who resides within respondent’s district.  Petitioner attempted to enroll the student in respondent’s district thereafter.

By letter dated February 28, 2025, respondent’s superintendent informed the student’s parents that they had “not … relinquished all care, custody and control” of their child to petitioner.  She provided them with an opportunity to submit additional evidence before making a final determination.  Thereafter, the student’s parents submitted additional documents, including parental affidavits, to respondent.

By letter dated March 13, 2025, respondent determined that the student’s parents had not transferred custody of the student to petitioner.  Respondent indicated that petitioner had not rebutted the presumption of parental residency as the student’s parents continued to provide significant financial support.  As such, respondent concluded that the student was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 18, 2025.

Petitioner contends that the student must reside with him due to “abuse” that occurred in Massachusetts and “significant challenges within his parent’s home.”  Petitioner further argues that he submitted “[a]ll proper documentation” necessary to enroll the student.  For relief, he seeks a determination that the student is a district resident entitled to attend its schools without payment of tuition.

Respondent contends that the students’ parents did not effectuate a total transfer of custody and control to petitioner.

Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

The presumption that a child resides with his or her parent or legal guardian 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).

Generally, if a child’s parent or legal guardian continues to provide financial support for the child’s room, board, clothing, and other necessities, the parent or guardian has not relinquished custody and control (see Catlin v Sobol, 77 NY2d 552, 562-562 [1991]; Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where parents or legal guardians retain decision-making authority over important matters such as medical care or education, a total transfer of custody and control has not occurred (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin, 77 NY2d at 562).

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, a 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 (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).

On this record, I cannot find that there has been a total and permanent transfer of custody and control of the student from his parents to petitioner.  The documents submitted by petitioner indicate that the students’ parents continue to consider him a dependent, providing him with health and dental insurance.  Moreover, the duration of the purported transfer is unclear; one of the student’s parents merely indicates in an affidavit that “[t]here’s no set duration.”  As such, petitioner has not demonstrated a “total, and presumably permanent” transfer of custody of the student to him (Appeal of D.M. and J.D., 61 Ed Dept Rep, Decision No. 18,031; see also Appeals of P.H., 59 Ed Dept Rep, Decision No. 17,698; Appeals of T.M., 58 id., Decision No. 17,496).

Similarly, petitioner has not met his burden of proving that the student has “establish[ed] residence apart from his or her parents” due to “abuse” or “significant challenges within the parent’s home.”  The petition and one of the parent’s affidavits state that the student experienced “abuse within [the student’s former] school district” and “[p]hysical abuse at school.”  Petitioner, however, submits no proof of these assertions.  As such, petitioner has not established a bona fide reason for residency apart from his parents (Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259; compare Appeal of L.L., 62 Ed Dept Rep, Decision No. 18,191).  Accordingly, respondent’s residency determination cannot be considered arbitrary or capricious.

THE APPEAL IS DISMISSED.

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