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Decision No. 13,831

Appeal of JOYCE MURPHY, on behalf of NICOLE KENT, from action of the Board of Education of the Menands Union Free School District regarding residency.

Decision No. 13,831

(September 4, 1997)

Tobin and Dempf, attorneys for petitioner, Kevin A. Luibrand, Esq., of counsel

Ronald H. Sinzheimer, Esq., P.C., attorneys for respondent, Peter J. Molinaro, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals respondent's determination that Nicole Kent is not a resident of the Menands Union Free School District ("district"). The appeal must be sustained.

Petitioner Joyce Murphy resides at 724 North Pearl Street, Menands, within the district, and is the maternal grandmother of Nicole Kent. Petitioner alleges that Nicole has resided with her in the district since November 1993. On March 3, 1994, the Albany County Family Court issued an order appointing petitioner as Nicole's guardian. Nicole's mother and siblings reside at 624 North Pearl Street, Albany, within a neighboring district. Petitioner freely admits that Nicole spends time with her mother and siblings and that Nicole often spends weekends at her mother's house. Although the record is unclear, it appears that Nicole is of high school age and that she first enrolled in respondent's schools in September 1994. The district does not maintain its own high school, but contracts with other districts for the education of its high school age students. As a resident of the district, Nicole would be entitled to attend one of those high schools, tuition-free.

At the beginning of the 1996-97 school year, respondent's superintendent requested that petitioner complete a residency affidavit because he suspected that Nicole was not a resident of the district. Additionally, the superintendent retained a private investigator to determine Nicole’s actual residence. The investigator observed Nicole leaving from or arriving at her mother's address on four occasions. By letter dated October 17, 1996, the superintendent informed petitioner that he had determined that Nicole was not a resident of the district and would be excluded from the district's schools. By letter dated October 25, 1996, the superintendent informed petitioner that Nicole would be allowed to continue in the district's schools pending the outcome of this appeal.

Respondent contends that the appeal should be dismissed as untimely. Respondent also contends that Nicole resides outside the district with her mother and that the guardianship arrangement was established, in part, if not totally, to allow Nicole to attend its schools. Respondent contends that because the order of guardianship made no mention of visitation, Nicole should not regularly stay with her mother. Respondent argues that because Nicole's mother is employed and appears capable of caring for Nicole, the guardianship arrangement is a pretense.

Petitioner contends that Nicole resides with her in Menands and will continue to reside there for at least four years, depending on Nicole's choice of college. She states that Nicole is encouraged to spend time with her mother and siblings in order to promote family unity. In an affidavit, Nicole states that she has lived with petitioner since November 1993. Nicole contends that she was attending a private school when she moved in with petitioner and, therefore, her move had no relationship to her school of attendance. Nicole also alleges that she did not enroll in the district until nearly a year after the move. Nicole states that she takes care of her siblings every Friday after school and sometimes spends the weekends at her mother's house. She asserts that she resides with petitioner, who provides for all her needs, including meals. She also asserts that petitioner has taken her clothes shopping, paid for her glasses and physical therapy, and provided her with an allowance.

I will first address the procedural issue raised by respondent. Respondent contends that the appeal is untimely because it was commenced December 10, 1996, more than 30 days from the October 17, 1996 letter informing petitioner of the residency determination. Pursuant to "275.16 of the Commissioner’s Regulations, an appeal to the Commissioner of Education under "310 of the Education Law must be brought within 30 days of the action complained of. Delay in commencing an appeal may be excused by the Commissioner for good cause. The Commissioner has previously excused delays in residency cases where, inter alia, the facts suggest residency in the district, the delay is de minimus, and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy. Those factors are present here. Accordingly, I will not dismiss the appeal as untimely.

Turning to the merits, Education Law "3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

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 Allen, 35 Ed Dept Rep 112; Appeal of Brutcher, 33 id. 56).

A child's residence is presumed to be that or his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted (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). Where the parent continues to exercise custody and control of the child and continues to support the child, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Gilbert, 36 Ed Dept Rep 19; Appeal of O'Malley, 35 id. 550).

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 Frank, 36 Ed Dept Rep 110; Appeal of Opurum, 35 id. 364; Appeal of Britton, 33 id. 120). Parents may not transfer legal guardianship of their children merely to achieve residence status for the children to take advantage of local schools (Matter of Proios, 111 Misc. 2d 252; Appeal of Opurum, supra). There is no evidence in the record to suggest that Nicole's mother transferred guardianship merely to achieve residency for school purposes. The guardianship order merely indicates it was issued to promote Nicole's interests. Neither petitioner nor Nicole gives any explanation for the transfer. However families are often faced with situations unrelated to school selection which require transfer of guardianship. Indeed, it appears that Nicole began living with petitioner while she was attending a private school and nearly a year before she attempted to enroll in respondent's schools. Therefore, absent other evidence, I cannot conclude that the motivating factor for the transfer of custody was to attend the district's schools.

Furthermore, there is no evidence in the record that Nicole's mother continues to exercise parental control over, or provide financial support for Nicole. To the contrary, the record shows petitioner provides Nicole with meals and an allowance and has paid for certain medical expenses. Respondent's only evidence is four observations by a private investigator. One observation took place on a Friday afternoon and another took place on a Monday morning. As already noted, Nicole babysits her siblings on Friday afternoons and sometimes spends weekends at her mother's house. Nicole also explains that on the other two occasions, she was staying with her mother because of, in one case, her grandfather's illness, and in the other case, family problems involving her aunt and uncle. I find these explanations to be reasonable and not indicative of residence with Nicole's mother. In the absence of compelling evidence that Nicole actually resides with her mother or that her mother continues to exercise custody and control, thus making her guardianship a sham, the presumption that she resides with petitioner in the district has not been rebutted.

Additionally, the fact that Nicole spends time with her mother and siblings does not rebut the presumption that she resides with her legal guardian. Rather, where time is split between parent and guardian, it is analogous to the situation in which a child's time is divided between a custodial and noncustodial parent (Appeal of Opurum, supra; Appeal of Pinto, supra). Respondent's position implies that as long as Nicole has contact with her mother, petitioner cannot be her legitimate guardian and Nicole, therefore, cannot reside with petitioner. The fact that a child continues to maintain a relationship with a parent who has relinquished custody is not determinative in resolving the issue of the child's residence (Appeal of Opurum, supra; Appeal of Pinto, supra).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the Menands Union Free School District admit petitioner's granddaughter to the schools of the district without payment of tuition.

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