Decision No. 13,465

(August 17, 1995)

Nassau/Suffolk Law Services Committee, Inc., attorneys for petitioner, Thomas Maligno and Deborah Samansky, Esqs., of counsel

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent Malverne, James H. Pyun, Esq., of counsel

Guercio & Guercio, Esqs., attorneys for respondent West Hempstead, Gary Steffanetta, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent Malverne's determination that Sharon Harris is not a resident of the district. The appeal must be sustained.

Petitioner is a resident of the Malverne Union Free School District ("respondent Malverne"). Sharon Harris is a sixteen year old student who attends high school in the West Hempstead Union Free School District ("respondent West Hempstead"). In October 1994, after an altercation with her mother which involved the police, Sharon moved in with petitioner. Prior to that, Sharon had lived with her mother in respondent West Hempstead's district. In late January 1995, respondent West Hempstead notified petitioner that Sharon was not a resident of the district since it was undisputed that Sharon was living with petitioner in respondent Malverne's district. In a letter dated February 17, 1995, respondent West Hempstead stated that Sharon would be excluded from its schools on March 1, 1995.

On February 28, 1995, petitioner attempted to register Sharon in respondent Malverne's high school, but was informed by a school official that she could not do so since she was not Sharon's parent or legal guardian. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits of her appeal was granted on March 21, 1995. The Commissioner of Education ordered respondent West Hempstead to admit Sharon to its schools and ordered that petitioner join that school district as a party to these proceedings.

Petitioner alleges that Sharon is entitled to attend respondent Malverne's schools because she is a resident of the district. Petitioner asserts that Sharon lives with her and that she provides her with food, shelter and other necessities. Finally, petitioner contends that Sharon's mother exercises no custody or control over Sharon and that Sharon abides by the rules petitioner sets in her home.

Respondent Malverne contends that Sharon is a legal resident of the West Hempstead Union Free School District. Respondent further contends that since petitioner is not Sharon's parent or legal guardian, she has no authority to register Sharon in school or provide parental permission for various required school forms and activities. Respondent Malverne also contends that Sharon's mother has not totally relinquished custody and control of Sharon. Respondent West Hempstead contends that Sharon is not a legal resident of the district and its decision to deny her admission to its schools was not arbitrary, capricious or unreasonable.

Education Law '3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446; Matter of Buglione, 14 id. 220).

A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 77 NY2d 552; rev'd on other grounds, ___ F. Supp ____[ND, NY 3/30/95]; Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted (Catlin v. Sobol, supra; Appeal of Brutcher, supra; Appeal of McMullan, 29 Ed Dept Rep 310). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Brutcher, supra; Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523). This presumption can be rebutted if a review of the totality of the circumstances so dictates (Catlin v. Sobol, supra). In making a determination of residency for a child not living with a custodial parent, a board of education must consider several factors including the extent of time the child actually lives in the district (Vaughn, et al. v. Bd. of Ed., 64 Misc.2d 60, 314 NYS2d 266).

Although a separate residence is not established when a student is living with someone other than a parent solely to take advantage of the schools of the district (Appeal of Ritter, 31 Ed Dept Rep 24), a student may establish a residence apart from his parents for other bona fide reasons (e.g. family conflict, see, Matter of Staulcup, et al., 20 Ed Dept Rep 11). Therefore, when there are overriding reasons for establishing one's residence apart from one's parents, aside from taking advantage of the educational programs of the district, and all the indicia of residency have been met, the fact that the choice of residence incidentally affords the student the opportunity to attend a certain school is not determinative (Matter of Moncrieffe, 121 Misc 2d 395).

In this case, petitioner has rebutted the presumption that Sharon's actual and only residence is with her mother. Petitioner alleges, and respondent Malverne does not deny, that petitioner has assumed financial responsibility for Sharon's needs and provides her with the care and supervision which would normally be provided by a parent. The record also indicates that Sharon has established her residency in respondent Malverne's district by applying for an employment certificate, medical benefits through the Department of Social Services, driving permit from the Department of Motor Vehicles and library card with petitioner's address as her home address. Sharon has indicated that she intends to reside with petitioner and will not return to her mother's home.

Furthermore, it appears that Sharon's move to petitioner's home was prompted by a continuing conflict with her mother. This is clearly not a case in which the student's residence has been changed from that of her parent merely to take advantage of the educational program of another school district. Rather, there is a valid reason unrelated to respondent Malverne's educational program which prompted Sharon's move. Under these circumstances, I find that Sharon's actual and only residence is with petitioner (Matter of Staulcup, et al., supra; Matter of Morello, 9 Ed Dept Rep 130).

I note that respondent Malverne contends that if I determine that Sharon is a resident of its district, I am appointing petitioner defacto legal guardian with no authority to do so. Respondent Malverne also contends that Sharon's mother is vigorously attempting to have her return home. I disagree with respondent's assessment. The record indicates that while Sharon's mother voiced objection to Sharon living with petitioner and enrolling in respondent Malverne's schools, she has made little attempt to renew contact with Sharon and has in fact banned her from her home or contact with her siblings.

Finally, respondent Malverne's argument that Sharon's mother retains custody and control of her is incorrect. The Family Court Act provides "a police officer may return to his parent...any male under the age of sixteen or any female under the age of eighteen who has run away from home without just cause..."(Family Court Act '718[a]). The courts have held this age-sex distinction as unconstitutional and the Court of Appeals has decided that the status for both boys and girls is set at age sixteen (Thaler v. Thaler, 391 NYS2d 331 [1977]; Childs v. Childs, 419 NYS2d 533 [1979]; A. v. City of New York, 335 NYS2d 33 [1972]. Sharon, who is sixteen years old, may choose where she wants to live, and her mother may not compel her return (Appeal of Deborah V., 29 Ed Dept Rep 176). Petitioner has produced sufficient evidence to rebut the presumption that Sharon lives with her mother. Moreover, petitioner has established that Sharon's residence is with her in respondent Malverne's district.

I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Malverne allow Sharon to attend school in the Malverne Union Free School District without the payment of tuition.

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