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Decision No. 13,233

Appeal of MAUREEN JOHNSON, on behalf of her son MAURICE JOHNSON, from action of the Board of Education of the Spackenkill Union Free School District regarding residency.

Decision No. 13,233

(July 29, 1994)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of respondent Board of Education of the Spackenkill Union Free School District that her son is not a resident of the district. The appeal must be dismissed.

Petitioner's son, Maurice, was first registered in the Spackenkill Union Free School District on September 8, 1994 by his grandmother, Geneva Johnson. His registration form indicates that he had moved from his mother's residence in the Poughkeepsie City School District in June 1993 to reside with his grandmother in respondent's district. When Geneva Johnson attempted to enroll Maurice in the district, she met with the superintendent and the district clerk and allegedly advised respondent that the reason she was enrolling her grandson in respondent's high school was that Maurice was having behavioral and academic problems at Poughkeepsie High School. During that meeting, Geneva Johnson stated that she was not financially responsible for Maurice. Maurice also stated that he was not having problems at home and that he would be going home to his parents every weekend during the upcoming year.

A hearing was held on September 13, 1993 pursuant to 8 NYCRR 100.2(y) to determine Maurice's residency. Petitioner was present at that meeting and alleged that Maurice was having difficulty coping with his parents' marital problems. Petitioner stated that it was in Maurice's best interests to leave his parents' home and reside with his grandmother. Although petitioner alleged that the grandmother had custody and control of Maurice and had presented a notarized statement to that effect at the time of registration, she presented no evidence that she would be relinquishing financial responsibility for him. By letter dated September 15, 1993, respondent informed petitioner that her son was not a resident of the district and could not attend its schools on a tuition free basis. This appeal ensued. On October 21, 1993, I issued an interim order directing respondent to allow petitioner's son to enroll in its schools pending a final decision on the merits. The appeal must now be dismissed.

Petitioner alleges that her son is a resident of respondent's district since he is now under the total custody and control of his grandmother, who is a resident of respondent's district. Respondent contends that its residency determination was not arbitrary, capricious or unreasonable and that petitioner has offered no evidence that she no longer exercises custody, control and care of her son, including financial responsibility for him. Respondent also contends that petitioner fails to state a cause of action.

Before reaching the merits, I will discuss the procedural issue. Respondent contends that petitioner fails to state a cause of action. Section 275.10 of the Commissioner's Regulations requires that a petition contain a clear and concise statement of the claim showing that petitioner is entitled to relief. I note that petitioner is not represented by counsel. In such cases, a liberal interpretation of the rules is appropriate, particularly where there is no evidence of prejudice to the opposing party (Appeal of Cerilli, 33 Ed Dept Rep 385; Application of a Child with a Handicapping Condition, 28 id. 519). I find that the petition sufficiently frames petitioner's claim for relief and that respondent adequately addressed petitioner's allegations in its answer. Because respondent has failed to establish that it was prejudiced by petitioner's drafting, I will not dismiss the appeal on that basis (Appeal of Schechter, et al., 28 Ed Dept Rep 118).

The appeal, however, must be dismissed on the merits. Upon review of the record, I find that there is insufficient evidence that petitioner's son resides in respondent's district. In general, a student's residence is presumed to be that of his or her parents or legal guardian (Catlin v. Sobol, 155 AD2d 24, rev'd on other grnds, 77 NY2d 552; Matter of Shelmidine, 22 Ed Dept Rep 206; Matter of Delgado, 24 id. 279). However, this presumption can be rebutted by examining the totality of the circumstances (Appeal of Ambris, 31 Ed Dept Rep 41). In particular, the presumption is rebutted when it is has been demonstrated there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Catlin v. Sobol, supra; Matter of Van-Curran and Knop, 18 Ed Dept Rep 523). While it is not necessary to establish parental custody and control through formal legal proceedings, it is necessary to demonstrate that a particular location is a child's permanent residence, and the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Pernell, 30 Ed Dept Rep 380).

The record before me does not support petitioner's contention that Maurice resides with his grandmother in respondent's district. The arrangements made, by which Maurice lives with his grandmother, do not appear to be permanent. In addition, petitioner offers no rebuttal to respondent's contention that the grandmother is not financially responsible for her grandson. There are also the conflicting statements of the parties concerning the reasons why Maurice was enrolled in respondent's district and where Maurice spends his weekends. Based on the evidence before me, I cannot conclude that Maurice is a resident of respondent's district.

THE APPEAL IS DISMISSED.

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