Appeal of Y.L., on behalf of her niece, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 18,605

(July 21, 2025)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Baldwin Union Free School District (“respondent”) that her niece (the “student”) is not a district resident.  The appeal must be dismissed.

Petitioner is the student’s aunt.  The student’s father currently lives in Florida and her mother resides outside of the country in Jamaica. 

On or about July 13, 2024, the student moved to petitioner’s residence within respondent’s district.  As explained herein, the parents executed affidavits that purportedly transferred guardianship of the student to petitioner.

On or about August 27, 2024, petitioner requested the student’s admission to respondent’s schools.  Respondent denied the request on September 11, 2024.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 21, 2024.

Petitioner asserts that the student is a district resident because the student’s parents transferred custody and control to her.  She seeks a determination that the student is entitled to attend respondent’s schools.

Respondent asserts that the petition must be dismissed because the student’s parents, not petitioner, are the student’s legal guardians.

Initially, I decline to dismiss the appeal for lack of standing.  An individual may not maintain an appeal pursuant to Education Law § 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Petitioner is a district resident who claims guardianship over the student (Appeal of Reade, et al., 60 Ed Dept Rep, Decision No. 17,941; Appeal of Riccinto, 46 id. 39, Decision No. 15,435; compare Appeal of M.M., 61 Ed Dept Rep, Decision No. 18,013 [aunt lacked standing because she did not identify herself as the student’s guardian]).  Because petitioner’s “guardianship status is the ultimate issue to be resolved,” I decline to dismiss the appeal on the threshold issue of standing (Appeal of Reade, et al., 60 Ed Dept Rep, Decision No. 17,941).

Turning to the merits, 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, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has not demonstrated a total transfer of custody and control.  Affidavits completed by petitioner and the student’s parents indicate that they intend for petitioner to maintain guardianship of the student until graduation or, alternatively, when the student’s father is able to provide “adequate housing.”[1]  The affidavits further indicate that the student’s parents will continue to provide food, clothing, and other necessities for the student.  The temporary and conditional nature of the transfer and the parents’ continued support for the student render it ineffective (e.g., Appeal of N.J., 63 Ed Dept Rep, Decision No. 18,317; Appeal of Suprunchik, 61 id., Decision No. 18,074).  As such, respondent reasonably determined that legal custody of the student remained with her parents.

THE APPEAL IS DISMISSED.

END OF FILE