Decision No. 13,805

(August 1, 1997)

MILLS, Commissioner.--Petitioner challenges the determination of the Florida Union Free School District ("the district") that her sons are not district residents entitled to attend its schools tuition free. The appeal must be dismissed.

Petitioner alleges that she and her children were evicted from their home in the district due to foreclosure and that she was unable to rent in the district. She contends that she moved to the Chester Union Free School District and that her sons, James and Angelo, moved in with a Patricia Williams within respondent's school district.

By letter dated September 25, 1997, respondent's superintendent, Maureen E. Flaherty, notified petitioner and her husband that it had come to the district's attention that they were no longer district residents, and that unless they could establish residency by October 4, 1996, their sons would be excluded on October 7, 1996. Apparently, discussions followed. On October 21, 1996, petitioner's sons were excluded from school for failure to prove residency. That day, petitioner provided the district with a letter granting Patricia Williams "the right to be the legal guardian of [her] two sons." At the district's request, petitioner and Ms. Williams also completed affidavits of legal responsibility. By letter dated October 23, 1996, Dr. Flaherty notified petitioner that, as respondent's designee authorized to decide residency issues, she had determined that petitioner's children were not district residents "because full care, custody, control and support [had] not been transferred" and that they therefore were not entitled to attend district schools. This appeal ensued. Petitioner requests a determination that her sons are district residents entitled to attend its schools tuition free. Petitioner's request for interim relief pending a determination on the merits was granted on November 22, 1996.

Petitioner contends that her sons are district residents because they live within the district with Ms. Williams. She maintains that she has surrendered parental control over James and Angelo and that Ms. Williams provides their food and shelter and exercises control over their activities and behavior. Respondent contends that petitioner had failed to rebut the presumption of residence within the parent's school 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 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).

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 Brutcher, 33 Ed Dept Rep 120; Appeal of Ritter, 31 id. 24; Appeal of McMullan, 29 id. 310). Moreover, the law is clear that 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, 111 Misc 2d 252; Appeal of O'Malley, 35 Ed Dept Rep 550; Appeal of Opurum, 35 id. 364; Appeal of Brutcher, 33 id. 120 Appeal of Pinto, 30 id. 374).

Although petitioner contends to have transferred custody and control of her sons to Ms. Williams, her actions lead me to conclude otherwise. Petitioner's affidavit of legal responsibility indicates that she provides financial support for medical expenses, dental expenses, food, clothing, and "whatever is needed." Petitioner states that she has daily contact with her sons, and that they visit on weekends. She indicates that her sons are living with Ms. Williams because her living space is too small and that she is looking for a larger living space in the district. In the petition, she indicated that her sons only intended to reside at Ms. Williams address for the remainder of the school year. Therefore, I must conclude that petitioner continues to exercise custody and control of the children, that she continues to support them, and that the current living arrangements are temporary. Therefore, the presumption of parental residence has not been rebutted. The children's residence is that of their parents and they are therefore not residents of the district.

THE APPEAL IS DISMISSED.

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