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Decision No. 13,842

Appeal of KENNETH PETRIE, on behalf of ANDREW PETRIE, from action of the Board of Education of the Queensbury Union Free School District regarding residency.

Decision No. 13,842

(October 23, 1997)

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Martin D. Auffredou, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals respondent's determination that his son, Andrew, is not a resident of the Queensbury Union Free School District ("Queensbury"). The appeal must be sustained.

Petitioner resides at 4 Mabel Terrace within Queensbury. Pursuant to a divorce decree dated October 28, 1985, petitioner's former wife was granted custody of Andrew, together with his brother and three sisters. Andrew's mother lives in the Corinth Central School District ("Corinth").

In September 1996, Andrew's mother made arrangements to enroll him in the Queensbury schools, even though he lived with her outside the district. On November 1, 1996, his sixteenth birthday, Andrew moved from his mother's home to his father's home, and continued to attend school in Queensbury through the end of the 1996-1997 school year.

In July 1997, Queensbury refused to allow Andrew to continue in attendance. It cited the divorce decree which gave custody to his mother, and determined that Andrew was still a domiciliary of Corinth, where his mother has continued to reside. It appears that Andrew's mother has repeatedly refused to relinquish legal custody.

Respondent's Assistant Superintendent for Curriculum Instruction indicates in an affidavit that the factual situation with Andrew also occurred with his older brother and one of his older sisters. According to the affidavit, when those children each turned 16, they moved from their mother's home to their father's home, and ultimately graduated from Queensbury High School. However, in those prior instances, petitioner applied for and obtained legal custody of those children. It does not appear that petitioner has attempted to obtain legal custody with respect to Andrew.

Petitioner contends that Andrew in fact resides in Queensbury, and has no other place of residence. He claims that he and his current spouse are responsible for Andrew's care and supervise his activities, and that Andrew's mother is no longer responsible for his day-to-day supervision or care.

Respondent concedes that Andrew actually lives in the district with his father, but claims that he was only allowed to enroll for the 1996-1997 school year with the understanding that his father would obtain legal custody of him. Respondent argues that, on these facts, Andrew cannot become a resident of its district as long as his mother retains legal custody, and states: "For the child to attend the School District on a tuition-free basis, he must reside with a parent or legal guardian who has complete legal custody or guardianship. The petitioner has no custody rights, is not the guardian of the child, and the child's mother will not relinquish permanent custody and control." Respondent emphasizes the difficulty it has experienced in dealing with two parents who are not particularly cooperative, and argues that the Commissioner of Education should not ignore the clear findings of a Supreme Court Justice embodied in the 1985 decree.

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 obligations of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Cortes, 37 Ed Dept Rep 114; Appeal of Keenan, 36 id. 6; Appeal of Brutcher, 33 id. 56).

It is well settled that a child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Keenan, supra; Appeal of Helms, 36 id. 95). Where a child's parents live apart, the child can have only one legal residence (Appeal of Helms, supra; Appeal of Juracka, 31 id. 282). Where the child's parents are divorced and a court order awards custody of the child to one parent, the child's residence is presumed to be that of the custodial parent (Appeal of Forde, 29 Ed Dept Rep 359; Appeal of Juracka, supra). However, that presumption may be rebutted.

In Appeal of Forde, petitioner, the non-custodial parent, lived in the school district, while the custodial parent lived outside. The student in that case lived with petitioner a substantial amount of the time. In deciding the case, the Commissioner noted that a determination of residency for a child not living with a custodial parent involved several factors, including the extent of time the child actually lived in the district and the intent of the family members to have the child reside in the district (Appeal of Forde, supra, p.361). The Commissioner went on to say that where a child's time is essentially divided between two households, the determination of the child's residence must rest ultimately with the family. In such cases, the custodial parent may designate the child's residence for purposes of Education Law "3202. If no designation is made by the custodial parent, the presumption that the child's residence is that of the custodial parent may be overcome by demonstrating emancipation (Appeal of Forde, supra, p.361). In Forde, the appeal was dismissed because petitioner presented no evidence that the custodial parent had consented to her son's residing with his father, nor did he present evidence of emancipation.

In Appeal of Barron (31 Ed Dept Rep 1), a similar factual pattern was presented. Petitioner lived in the district, but was divorced from the child's mother, who had legal custody pursuant to a divorce decree and lived outside the district. The child moved from his mother's household to his father's household in the district. In that case petitioner and his former wife executed a stipulation which purported to modify the divorce decree and transfer custody of the child to petitioner. The Commissioner found that the stipulation did not legally modify the divorce decree, but found that it was "compelling evidence that [the child's] mother, as custodial parent, consented to her son's legal residence with his father." The presumption that the child lived with the custodial parent was thus successfully rebutted, and the child was found to be a district resident.

A similar circumstance occurred in Appeal of Cortes (supra), where the father lived in the district, but his former wife lived outside the district. In that matter, petitioner and his former wife had joint legal custody of their three children, but the mother had somewhat greater custodial rights than the father. Because petitioner and his former wife designated petitioner's home as the boy's residence, the Acting Commissioner found that the children were residents of the district and were entitled to attend its schools without the payment of tuition (Appeal of Cortes,supra, p.121).

The appeal before me presents very similar circumstances. There is no question that petitioner's son actually lives with him at his residence within the district. There also can be no doubt that petitioner's former wife, the custodial parent, has consented to this arrangement. The petition, indeed, alleges that it was Andrew's mother who actually enrolled him at Queensbury in September 1996, in anticipation of his move to his father's home on November 1, 1996. Respondent's answer admits as much, and affirmatively states that Andrew's mother enrolled him in the district. On those bases, petitioner has satisfied the requirements of Forde, Barron, and Cortes, has established that his son is a district resident, and has established that he is entitled to attend district schools without the payment of tuition.

Obviously, it would have been preferable for petitioner and his former wife to have obtained a modification of the divorce decree. Contrary to respondent's argument, this decision does not purport to modify the divorce decree. As between the parents, the divorce decree gives the mother a superior right to custody as against the father, and this decision does not change that. However, a determination of residency and the right of the child to attend public school pursuant to Education Law "3202 is a different determination, and is the issue before me in this matter.

Moreover, respondent's argument that for a child to attend the district's school tuition-free, he must reside with a parent or legal guardian who has complete legal custody or guardianship, is clearly wrong, in light of Barron and Cortes. Respondent confuses the child's right to attend school pursuant to Education Law "3202 with its own difficulties contending with a "cross-fire" between parents who do not always agree. These are separate issues, and the practical difficulties that may arise in the course of educating Andrew in Queensbury in the future are not matters that are before me at this time.

THE APPEAL IS SUSTAINED.

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

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