Decision No. 13,572

(March 13, 1996)

MILLS, Commissioner.--Petitioners appeal respondent's determination that their children are not residents of the Bay Shore Union Free School District ("respondent"). The appeal must be dismissed.

Millicent and Byron, age fifteen, and Michael Opurum, seven, have attended school in respondent district since September 1992. In September 1993, when petitioners moved to New York City, the children lived with their grandparents and continued to attend respondent's schools. In early 1994, petitioners returned to the Bay Shore area, purchasing a home located within the Brentwood Union Free School District. In May, respondent informed petitioners that their children could not attend its schools because they were nonresidents, unless they had legal guardianship transferred to their grandmother in Surrogate's Court. In August 1994, legal guardianship of Byron and Michael was transferred to their grandmother, Beverly McClure. (The record does not indicate whether legal guardianship was sought or awarded for Millicent.) By letter dated November 2, 1995, respondent again notified petitioners that their children would be excluded from district schools because they were not district residents. This appeal ensued. Petitioners' request for interim relief pending a determination on the merits was denied on November 25, 1995.

Petitioners, residents of the Brentwood Union Free School District, argue that their three children live with their grandparents, Major and Beverly McClure, within respondent district. They allege that they are unable to care for their children because Innocent works in New York City and travels overseas frequently for four to six weeks at a time and because Donna has a medical condition that requires frequent hospitalization.

Respondent contends that petitioners' children are nonresidents. First, it asserts that it has no evidence that legal guardianship has been transferred. It focuses on the custodial affidavits on file with the district and statements in the petition. Those documents indicate that the children visit their parents on weekends, that petitioners provide their children with food, shelter, and clothing, that petitioners continue to exercise control over the children's behavior, and that the children's current living arrangement is temporary. Furthermore, respondent contends that evidence supplied by district investigators indicates that the children actually live with petitioners within the Brentwood school district, not with their grandparents in respondent district.

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 only to district residents (Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Warburton, 35 id. 74). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Reilly, 35 Ed Dept Rep ___, Decision No. 13,550 dated February 5, 1996; Appeal of Allen, supra).

When a court has issued letters of guardianship to an adult residing within a given district, the ward is presumed to reside in that school district (Appeal of Britton, 33 Ed Dept Rep 120; Appeal of Hilaire, 31 id. 84). The presumption of a ward's residence can be rebutted if, for example, it can be shown that the guardianship was established merely for the purpose of circumventing a district's nonresident policy (Appeal of Pinto, 30 Ed Dept Rep 374). In fact, courts have refused to transfer legal guardianship if it is apparent that the purpose of the transfer is to defeat the school district's policy to exclude nonresidents (Matter of Proios, 111 Misc. 2d 252). However, once established, the presumption that a child's residence has been transferred to a legal guardian is not rebutted by a mere showing that the child spends time with or visits his or her parents (Appeal of Pinto, supra). Rather, where time is equally split between parents and guardians, the decision of the child's residence remains with the parents and guardians (id.), analogous to the situation in which a child's time is equally divided between a custodial and noncustodial parent (Appeal of Forde, 29 Ed Dept Rep 359).

In this case, petitioners' reliance on legal guardianship to guarantee the determination of their children's residency is misplaced. Parents may not transfer legal guardianship of their children merely to achieve residence status for the children to take advantage of the local schools (Matter of Proios, supra; Appeal of Pinto, supra). Although petitioners' children had been living with their grandparents, the record indicates that petitioners did not transfer guardianship until respondent raised the issue of residency. Therefore, I conclude that guardianship was sought for the purpose of establishing school district residency, and I cannot recognize residency based on guardianship entered into for that purpose.

Absent guardianship, a child's residence is presumed to be that of his or her parents. That presumption can be rebutted where it is shown that the parents have relinquished total custody and control (Appeal of Gorrasi, 35 Ed Dept Rep 68; Appeal of Brutcher, 33 id. 56). In this case, petitioners admit that they share custody and control, and provide food, shelter, and clothing for their children in conjunction with the children's grandparents. Therefore, the presumption of residence within the parents' school district has not been rebutted. Accordingly, respondent's determination will not be set aside.

THE APPEAL IS DISMISSED.

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