A.B., on behalf of minor child, L.M.D-R V. BOARD OF EDUCATION OF THE TOWNSHIP OF BURLINGTON, BURLINGTON COUNTY, 5/2/14, (#180-14)

#180-14 (OAL Decision: http://njlaw.rutgers.edu/collections/oal/html/initial/edu18369-13_1.html)
A.B. on behalf of minor child L.M.D.-R., 	:
PETITIONER, 	: 	COMMISSIONER OF EDUCATION
V. 	: 	DECISION
BOARD OF EDUCATION OF THE 	:
TOWNSHIP OF BURLINGTON,
BURLINGTON COUNTY, 	:
RESPONDENT. 	:
SYNOPSIS
Petitioner appealed the determination of the respondent Board that her grandson, L.M.D.-R., was not
eligible for a free public education in the Burlington Township school district. Petitioner contended that
L.M.D.-R. resides with her, and that she shares custody with her daughter, T.O., the child’s mother.
The Board asserted that – based on a residency investigation – L.M.D.-R. resides with T.O. in
Philadelphia, Pennsylvania. 	The Board filed a counterclaim for tuition reimbursement, submitting that
$9,085.04 is due for the period from February 13, 2013 to June 25, 2013, and $9,296.30 for the period
from September 9, 2013 to February 4, 2014.
The ALJ found, inter alia, that: the weight of evidence, including exhibits and testimony, indicates that
L.M.D.-R. resides with his mother, T.O., in Philadelphia, and not with the petitioner in Burlington
Township; 	although T.O. produced a Custody and Parenting Agreement to show that A.B. was
designated to have primary residential custody of L.M.D.-R., A.B. is not the legal guardian nor the parent,
as required under N.J.A.C. 6A:22-3.1(a)(1); 	petitioner provided no proof that she was supporting
L.M.D.-R. gratis, as required by N.J.S.A. 18A:38-1(b)(1); 	the mother, T.O., admitted that she lived in
Pennsylvania, and was observed leaving her home in Philadelphia and driving L.M.D.-R. across the
Burlington-Bristol Bridge from Pennsylvania to drop him off for school in Burlington Township; and,
since A.B. is not L.M.D.-R.’s guardian, any assessment of tuition must be against T.O., and would need
to be pursued under a separate action. 	Accordingly, the ALJ affirmed the Board’s determination that
L.M.D.-R. is not domiciled in Burlington Township, but – with respect to the question of tuition –
dismissed the Board’s counterclaim against A.B., as she found that A.B. is not the legal guardian, and the
mother, T.O., is not a party to the case herein.
Upon review, the Commissioner concurred with the ALJ’s conclusions that 1) the petitioner has failed to
sustain her burden of proving that L.M.D.-R. is entitled to a free public education in Burlington schools,
and 2) T.O. is not a party to this case, and therefore tuition may not be assessed against her. However, the
Commissioner rejected the ALJ’s determination that A.B. is not liable to the Board for L.M.D.-R.’s
tuition, finding that A.B. – as the court-ordered residential custodian of L.M.D.-R. – was in fact her
grandson’s guardian as defined in N.J.A.C. 6A:22-1.2; further, pursuant to N.J.S.A. 18A:38-1(b)(2), the
Commissioner must assess tuition against A.B., prorated to the time of L.M.D.-R.’s ineligible attendance
in Burlington Township schools. 	Accordingly, the Commissioner dismissed the petition and assessed
petitioner tuition in the amount of $18,381.34.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the
reader. It has been neither reviewed nor approved by the Commissioner.
May 2, 2014

OAL DKT. NO EDU 18369-13
AGENCY DKT. NO. 291-11/13
A.B. on behalf of minor child L.M.D.-R., 	:
PETITIONER, 	: 	COMMISSIONER OF EDUCATION
V. 	: 	DECISION
BOARD OF EDUCATION OF THE 	:
TOWNSHIP OF BURLINGTON,
BURLINGTON COUNTY, 	:
RESPONDENT. 	:
____________________________________
Before the Commissioner is a residency dispute pertaining to L.M.D.-R., a child
whose grandmother, A.B., lives in respondent’s district and whose mother, T.O., admittedly
resides in the home she owns in Philadelphia, Pennsylvania. Petitioner and T.O. represented to
respondent that, due to T.O.’s family and economic difficulties, L.M.D.-R. lives with A.B. in
Burlington Township. 	Petitioner also provided a copy of a custody order, approved by the
Honorable John L. Call, P.J.F.P., designating A.B. as L.M.D.-R.’s “parent of primary residence.”
However, as a result of remarks which L.M.D.-R. made to his teacher, respondent
suspected that he was not actually domiciled with petitioner in Burlington Township. 	A
residency surveillance 	was 	ordered 	and 	the 	results 	supported 	respondent’s 	belief 	that 	–
notwithstanding the above-referenced custody order – L.M.D.-R. actually lived with T.O. in
Philadelphia and was driven from there to school each morning.
Upon 	consideration 	of 	the 	record, 	the 	Commissioner 	concurs 	with 	the
Administrative Law Judge (ALJ)1 that the evidence presented at the hearing in the Office of
Administrative Law (OAL) supported respondent’s determination that L.M.D.-R. has not been
1 Neither party filed exceptions to the Initial Decision of the Office of Administrative Law.
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residing in Burlington Township with A.B. 	In such cases, where the facts in evidence are
discrepant with the terms of a custody order, the Commissioner will look behind the terms of the
order, find that the child is not domiciled in the subject district, and affirm the Board of
Education’s determination that the child is not entitled to a free public education in its district.
See, e.g., I.B. on behalf of minor child, M.A., III, v. Board of Education of the Township of
Belleville, Essex County, State Board Dkt. No. 51-05, decided December 6, 2006; D.M. on behalf
of minor child, B.N. v. Board of Education of the Township of Ewing, Mercer County, State
Board Dkt. No. 20-02, decided November 5, 2003, where the school districts presented
overwhelming evidence that the respective children were not actually living with the individual
who had been granted custody.
The Commissioner is also in accord with the ALJ that, since T.O. is not a party to
this case, tuition may not be assessed against her. 	However, the Commissioner disagrees with
the ALJ’s determination that A.B. is not liable to respondent for tuition covering the period
during which L.M.D.-R. attended respondent’s schools while living in Philadelphia.
The ALJ correctly recites the portion of N.J.S.A. 18A:38-1(b)(2) which states:
“[i]f in the judgment of the commissioner the evidence does not support the claim of the parent
or guardian, the commissioner shall assess the parent or guardian tuition for the student prorated
to the time of the student’s ineligible attendance in the schools of the district.” 	However, the
ALJ’s conclusion – that A.B. was not a guardian of L.M.D.-R. and could therefore not be
assessed damages for tuition – is incorrect.
N.J.A.C. 6A:22-1.2, one of many regulations promulgated for implementation of
N.J.S.A. 18A:38-1(b)(2), defines “Guardian” as:
a person to whom a court of competent jurisdiction has awarded guardianship
or custody of a child, provided that a residential custody order shall entitle a
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child to attend school in the residential custodian’s school district unless it
can be proven that the child does not actually live with the custodian . . .
[Emphasis added.]
Thus, as a court-ordered residential custodian of L.M.D.-R., A.B. was a guardian for purposes of
N.J.S.A. 18A:38-1(b). 	Since the Commissioner finds that the evidence does not support the
claim of A.B., the petitioner herein, the Commissioner must assess A.B. tuition for L.M.D.-R.,
prorated to the time of his ineligible attendance in respondent’s schools. 	Were this not so, for
each of the unfortunately frequent instances in which relatives or friends agree to assume custody
of children who actually do not live with them, school districts would have to participate in a
hearing before the Commissioner to establish liability and then another hearing in Superior Court
to collect tuition.
Accordingly, the petition is dismissed, respondent’s determination that L.M.D.-R.
is not eligible for a free public education in its district is affirmed, and petitioner is assessed
tuition in an amount found by the ALJ to be $18,381.34.
IT IS SO ORDERED.2
ACTING C OMMISSIONER OF EDUCATION
Date of Decision: May 2, 2014
Date of Mailing: 	May 2, 2014
2 This decision may be appealed to the Superior Court, Appellate Division, pursuant to P.L. 2008, c. 36
(N.J.S.A. 18A:6-9.1).
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