Decision No. 13,555

(March 5, 1996)

Lester G. Sconiers, Esq., attorney for petitioner

Norton/Radin/Hoover/Freedman, Esqs., attorneys for respondent, Bernard B. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Tonawanda City School District ("respondent") that her grandson is not a resident of the district. The appeal must be dismissed.

Petitioner is a resident of respondent's district and the student's paternal grandmother. On March 21, 1995, petitioner registered her grandson for school in respondent's district as a transfer student from the Newfane Central School District. In the fall of 1995, questions arose concerning the student's residence when school bus drivers noticed that he was routinely dropped off from an automobile in front of his grandmother's address before being picked up by the bus. In the afternoon, bus drivers noticed that when the student was dropped off by the bus, he entered a waiting automobile instead of petitioner's residence. Bus drivers also reported that other children exiting petitioner's house did not associate with the student.

Based on these observations, respondent hired a private investigator to surveil the student. Respondent's investigator reported that he observed the student and his father leaving from and arriving at an address outside respondent's district and proceeding to or from petitioner's address over seven days of random surveillance. The surveillance report indicated that the student and his father typically traveled from an address outside the district, stopped at a fast food restaurant and proceeded to petitioner's address. There, they waited in an automobile until a minibus or other vehicle stopped to pick up the student and transport him to school.

By letter dated October 20, 1996, respondent's assistant superintendent informed petitioner that questions had arisen regarding the student's residency and requested that petitioner submit information concerning her grandson's residence. By letter dated October 31, 1995, petitioner's attorney submitted three documents purporting to establish the student's residency: a Michigan court order dated January 1995, a notice from the Niagara County Department of Social Services that indicated that the student's assistance was being discontinued because he had moved from Niagara County, and a notice from the Erie County Department of Social Services regarding the student's eligibility for medical services in Erie County.

Based on this record, respondent determined that the student was not a resident of the district and informed petitioner that he would be excluded from school on November 6, 1996. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on January 11, 1996.

Petitioner alleges that her grandson and son reside with her in the district and seeks an order reversing respondent's determination. Respondent contends that the student and his father are not residents of the district, and that its determination was proper. Respondent also raises a procedural objection that petitioner has failed to meet her burden of proof.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). 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 Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523). Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279; Appeal of Garretson, supra). Moreover, where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Ritter, 31 Ed Dept Rep 24; Appeal of McMullan, 29 id. 310).

In this case, petitioner claims that she has custody of her grandson and offers an order from a Michigan court that released him into her custody. The circumstances of this court order are not explained in the record, and I note that it is not an order of custody from a family court, but rather an order based on a child protective services proceeding. While that order releases the student into petitioner's custody, it does not appear to grant her legal custody of her grandson. Therefore, petitioner has not established, based on this document, that her grandson is in her custody and control for purposes of residency under the Education Law. Therefore, the student's residence is presumed to be with his father.

Furthermore, although petitioner claims that her son and grandson reside with her in the district, she offers little in the way of documentary evidence, other than her son's automobile registration and an insurance identification card, to support her claim. In addition, the surveillance conducted by respondent shows petitioner's son and grandson departing in the morning and arriving in the afternoon at an address outside the district. Although petitioner submits an affidavit from the individual who lives at that address claiming that the student and his father do not live there, I find this affidavit unpersuasive insofar as it purports to establish the student's residency with petitioner. Petitioner has not provided any explanation of the surveillance which placed the student and his father at that address on several occasions or any other substantial proof of his residence within the district.

Based on the record before me, I cannot conclude that respondent's determination that the student is not a resident of the district was arbitrary, capricious or unreasonable.

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

THE APPEAL IS DISMISSED.

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