Every child is guaranteed a public education, but student residency requirements limit which particular school district a child may attend.1 The premise is simple: students are entitled to enroll tuition-free only in the school district where they actually reside. However, the law of student residency is less clear when a court transfers legal custody or guardianship of a child to a third party. A court order of guardianship is ‘determinative’ for residency purposes, so that a child may enroll in the school district where he and his guardian both reside. The misconception is that the presence of a court order somehow limits the authority of a school district to verify whether the child actually resides in that district with his guardian. This article intends to dispel the misconception, and describe how new legislation in the area of family law clarifies when a guardian or custodian may enroll a child in school.
Overview of Student Residency
New York Education Law §3202(1) provides that a student “is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.” Section 3202 gives a student the right to attend school tuition-free only in the district where he resides, and gives school districts the authority to determine whether a student is a bona fide resident.2 The purpose of Section 3202 is to relieve a school district from the expense and burden of educating nonresident children.3 This system of residence-based education helps to distribute fairly the costs of education among school districts, and helps to maintain the quality of local public schools.4 In fact, without student residence re-quirements, “there can be little doubt that the proper planning and operation of the schools would suffer significantly.”5
Similar to domicile, residence is established by both “physical presence” as an inhabitant within the school district and the intent to remain.6 The residence of a child is assumed to be that of his parents. This presumption can be rebutted by evidence of a total – and presumably permanent – transfer of custody and control to a third party who resides in the district
Court Orders of Custody or Guardianship
Legal custody may be transferred to a non-parent by obtaining an order of custody or guardianship from a court of competent jurisdiction (i.e., Supreme Court, Family Court or Surrogate’s Court, depending on the circumstances).8 In both guardianship and custody proceedings, the legal standard is “best interests of the child.”9 However, the law is clear that guardianship may not be granted merely to enroll the child in a particular school district.10
For example, in Matter of Proios, 443 N.Y.S. 2d 828, 829 (Surr. Ct. Nassau Cty., 1981), the parents moved outside of a “preferred” school district, and then petitioned the Nassau County Surrogate’s Court to transfer guardianship to a resident of their former district. The child had never resided with the proposed guardian, and the purpose of the application was to achieve residence status so that the child may attend the former school district tuition-free. Wise to the scheme, the Surrogate’s Court dismissed the petition and held, “discretion should not be exercised merely to promote the educational wishes of the infant and his parents to the detriment of the legitimate interests of the school district.”11
In some school districts, this scenario is all too common. Parents file a petition to assign guardianship of their child to a third party who resides in a “preferred” school district, solely to enroll the child in that preferred district tuition-free. Once the guardian is appointed, the preferred district admits the child tuition-free, with the expectation the child actually resides with his guardian. In too many cases, the school district discovers that the child actually lives outside of the school district, with his parents, in violation of student residency requirements. When this occurs, the school district presumes that the guardianship order precludes the district from enforcing its lawful residency requirements. However, this should not be the case.
Effect of Court Orders on Student Residency Determinations
Prior to 2006, it was well-settled that legal guardianship did not guarantee the determination of a child’s residency.12 When reviewing school district determinations of student residency, the New York State Commissioner of Education routinely considered whether the parents transferred legal guardianship of their child merely to enroll that child in a particular school district.13 The Commissioner overturned these prior holdings in Appeal of D.R., 45 Ed. Dept. Rep. 550 (2006). In Appeal of D.R., the Commissioner held that where a court of competent jurisdiction has legally transferred custody of a child, and the child actually lives with the court-appointed guardian, the Commis-sioner would accept the court order as ‘determinative’ for residency purposes. The Commissioner would no longer “look behind” the court order to review the intent of the custody transfer.14
The Commissioner cautioned that the holding in Appeal of D.R. “does not address the situation where the evidence indicates that the child does not actually reside with the court-appointed guardian in accordance with the court order.” However, in cases where a guardianship order was obtained while the appeal was still pending, the Commissioner accepted the court order as determinative of residency and declined to review prior evidence.15 Some school districts were left with the false impression that a court order of guardianship or custody could, in fact, guarantee a finding of residency.
Challenging the Legitimacy of a Guardianship or Custody Order
It is undisputed that transferring custody of a child is a serious event, and that discerning the best interests of a child is a daunting task. But the law remains clear that courts may not transfer legal guardianship of a child to a non-parent solely to take advantage of a school district. Each year, it seems that more nonresident parents abuse court orders to take unfair advantage of school districts. With shrinking school budgets and a weakening economy, school board members and taxpayers alike have a greater stake in enforcing student residency requirements.
When a school district has grounds to believe that parents are transferring guardianship of their child merely to enroll the child in a particular school district, what recourse is available? According to the Commissioner, “Any objection to the legitimacy of the transfer should be made before the court in a custody proceeding, not in a subsequent educational appeal to the Commis-sioner of Education.”16 In practice, however, three major obstacles prevent school districts from opposing a custody transfer in the underlying court proceeding.
The first obstacle is notice; schools rarely know about a custody petition until the parent arrives at school with a final order (invariably attached to a copy of Appeal of D.R.). The second obstacle is legal standing. The third is less obvious: an attorney who appears on behalf of a preferred school district is not likely to inspire sympathy from family court practitioners, whose daily dockets overflow with more visceral matters. Nonetheless, school districts should take every opportunity to voice concerns about a questionable motive for transferring custody of a child. This gives the court an opportunity to consider additional information, and base its custody decision upon a more-informed record. This is not to mention the interests of school taxpayers, who ultimately pay the costs of education and services for nonresident students.17
Effective November 3, 2008, new legislation clarifies the legal powers of custodians and guardians of children.18 Chapter 404 of the Laws of 2008 (A.8385-B) was enacted because the “effect of an application to be appointed a custodian or guardian of a child has caused confusion to parties, schools, health and medical services providers alike.”19 The legislation clarified the ability of a custodian or guardian to enroll a child in school. Specifically, Chapter 404 provided that “a public school shall enroll such child for such time as the child resides with the guardian or custodian in the applicable school district, upon verification that the guardian or custodian possess a lawful order of guardianship or custody for such child and that the guardian or custodian and the child properly reside in the same household within the school district.”20
Notably, Chapter 404 does not provide that court orders of guardianship or custody are ‘determinative’ for student residency purposes. Rather, the legislation affirms that school districts may verify that both “the guardian or custodian and the child properly reside in the same household within the school district.” For education law practitioners, this is a crucial point.
This Legislation May Affect Student Residency Determinations
Chapter 404 of the Laws of 2008 (A.8385-B) does not amend the Education Law. But education law practitioners may still benefit from the 2008 legislation, as it informs and clarifies the law of student residency. Chapter 404 appears to endorse the ability of school districts to review a court order of guardianship or custody in the context of other evidence, (e.g., utility bills, documentation, surveillance reports, witness statements, etc.), to verify whether a student actually resides within the district.
In accordance with Appeal of D.R., it may never be appropriate to “look behind” a court order when student residency is at issue. However, in light of Chapter 404, school districts should be permitted to “look beyond” a court order, and to consider all available evidence in determining whether a student is a bona fide resident.
Christie R. Medina is an associate with Frazer & Feldman, LLP, in Garden City, New York. She concentrates on Education, Labor and Municipal Law. Christie graduated from the Hofstra University Honors Program (B.A., magna cum laude, Phi Beta Kappa, 2003) and Hofstra University School of Law (J.D., 2006). She is a recipient of the “Commissioner Monica Gollub Memorial Endowed Distin-guished Academic Scholarship in Law.” Questions can be directed to email@example.com.
1. See Goss v. Lopez, 419 U.S. 565 (1975). See also Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 N.Y.3d 385, 389 (2004)(citing N.Y. Education Law §3202).
2. At the school district level, the board of education (or its designee) determines whether a child is a bona fide district resident and, therefore, entitled to attend its schools tuition-free. See 8 N.Y.C.R.R. §100.2(y). Such determinations may be appealed to the New York State Commissioner of Education in accordance with Education Law §310. A determination of the Commissioner of Education may be appealed to the courts via C.P.L.R. Article 78. See, e.g., Board of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., 91 N.Y.2d 133 (1997).
3. Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 N.Y.3d 385, 389 (2004).
4. Id.; Paynter ex rel. Stone v. State, 290 A.D.2d 95 (4th Dept., 2001).
5. Martinez v. Bynum, 461 U.S. 321, 329 (1983).
6. Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 N.Y.3d 385, 388 (2004).
7. Appeal of Palmieri, 45 Ed. Dept. Rep. 174 (2005).
8. See N.Y. Const. Art. 6, 7, 12 and 13; Family Court Act (FCA) §661; Surrogate’s Court Procedure Act (SCPA) §1701. For school purposes, custodians and guardians have the same general rights and responsibilities with regard to the subject child. See Matter of Linton, 12/18/98 N.Y.L.J. 38, (col. 3). See also Segal, P. and Kaough, M., “Weighing Guardianship of a Child versus Custody”, 2/25/2002 N.Y.L.J 1, (col.1).
9. SCPA §1701; Domestic Relations Law (DRL) §240.
10. Matter of Proios, 443 N.Y.S. 2d 828, 829 (Surr. Ct. Nassau Cty., 1981).
11. Id., at 253.
12. See, e.g., Appeal of Vazquez, 42 Ed. Dept. Rep. 245 (2003); Appeal of Opurum, 35 Ed. Dept. Rep. 364 (1996).
15. See, e.g., Appeal of Crawford, 48 Ed. Dept. Rep. __, Dec. No. 15,801 (2008).
17. School districts have the right to seek tuition for nonresident students. Such actions may be based on Education Law §3202 or a cause of action for fraud and/or misrepresentation. See, e.g., Board of Educ. of Bay Shore, Union Free School Dist. v. Marsiglia, 182 A.D.2d 662, 664 (2d Dept., 1992).
18. Chapter 404 of the Laws of 2008 (A.8385-B) (amending FCA §661; adding FCA §657; adding DRL §74; and amending SCPA §§1701, 1702, 1703, 1704, 1706 and 1707).
19. Sponsor’s Memorandum in Support of Assembly Bill A8385-B.
20. FCA §657(a)(emphasis added). DRL §74 mirrors this language.
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