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Decision No. 14,626

Appeal of KIM M. TERI, on behalf of FRANK V. TERI, from action of the Board of Education of the Fallsburg Central School District regarding residency.

Decision No. 14,626

(August 22, 2001)

Shaw & Perelson, LLP, attorneys for respondent, Jay M. Siegel, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals a determination by the Board of Education of the Fallsburg Central School District ("respondent") that her cousin, Frank V. Teri, is not a district resident and may not attend its schools tuition-free. The appeal must be dismissed.

Petitioner lives in Hurleyville, within respondent's district, and Frank's mother lives in Brooklyn. On or about April 30, 2001, Frank's mother sent him to live with petitioner and her husband in Hurleyville. Petitioner promptly attempted to enroll Frank in respondent's schools. Petitioner and Frank's mother submitted affidavits of legal responsibility, which were reviewed by respondent's superintendent. By letter dated May 29, 2001, the superintendent denied petitioner's application to enroll Frank, on the grounds that the purported transfer of guardianship was for the sole purpose of allowing Frank to attend district schools. The superintendent stated that the affidavits also indicated that Frank"s mother continued to assume certain financial support for him, and thus full custody and support had not been transferred. This appeal ensued. Petitioner's request for interim relief was denied on June 20, 2001.

Petitioner contends that custody and guardianship of Frank has been transferred to her and her husband, and that they will now provide full custody, control and financial support for him. Petitioner seeks an order admitting Frank to respondent's schools. Respondent denies that Frank is a district resident and contends that petitioner has failed to meet her burden of establishing a clear legal right to the relief requested.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Burdi, 39 id. 176, Decision No. 14,206).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Epps, supra; Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014), but this presumption may be rebutted (Appeal of Ramirez, 40 Ed Dept Rep ___, Decision No. 14,449; Appeal of Juarez, 39 id. 184, Decision No. 14,208; Appeal of Menci, 35 id. 61, Decision No. 13,465). 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 Epps, supra; Appeal of Juarez, supra; Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201). Where the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Karmin, supra; Appeal of Beska, 39 Ed Dept Rep 661, Decision No. 14,344; Appeal of Brown, 38 id. 159, Decision No. 14,007). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Epps, supra; Appeal of Pernell, 30 Ed Dept Rep 380, Decision No. 12,502; Appeal of Tunstall, 27 id. 144, Decision No. 11,899), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Juarez, supra; Appeal of Rivera, 38 Ed Dept Rep 119, Decision No. 13,997).

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 Epps, supra; Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of a Student with a Disability, 37 id. 29, Decision No. 13,796). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Juarez, supra; Appeal of Menci, supra) or the hardships of single parenting (Appeal of Epps, supra; Appeal of McMullan, 29 Ed Dept Rep 310, Decision No. 12,304). In such cases, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child is not determinative in resolving the question of the child"s residence (Appeal of Juarez, supra; Appeal of Lebron, 35 Ed Dept Rep 359, Decision No. 13,570). Nor is it necessarily determinative that the child continues to be covered by the parent"s health insurance where there is no indication that providing such coverage requires a financial contribution or involves control over medical care (Appeal of Burdi, supra).

In the instant appeal, petitioner and Frank's mother submitted affidavits of legal responsibility to the district in May 2001. In petitioner's affidavit, she stated that the arrangement was to be permanent, that the reason Frank was living with her was to "continue his education seeking a secure future in a warm, loving environment," and that petitioner would provide support for Frank. However, petitioner admitted that the student's mother would provide health and dental insurance, and would send petitioner $200 a month for Frank. The mother's affidavit similarly stated that Frank wanted "to complete his academic year with his cousin" and also noted that the student needed a male role model. She expressly relinquished all parental rights and responsibilities for Frank to petitioner and her husband, and stated that the reason for such relinquishment was because Frank wanted to reside with petitioner so that he could "attend school and better himself." Responding to the question on the form as to the duration of this living arrangement, she stated "I would like Frank to remain with Mr. [and] Mrs. Teri for the remainder of this academic year, as well as the following." The mother also indicated that she would provide medical and dental insurance, and $200 a month for support. On the basis of these affidavits, respondent determined that the transfer of guardianship was for the sole purpose of attending district schools, and that Frank's mother had not transferred full custody and control.

Two significantly different affidavits were attached to the petition in this appeal. In her new affidavit, Frank"s mother states, as the reason for the transfer of custody, that Frank needs a male role model who can provide supervision, and that as a single mother she can no longer care for or handle Frank's supervision. She also states that this arrangement is to be permanent, and she does not indicate that she will be providing any health/dental insurance or any financial support. Petitioner similarly states that the transfer is to provide necessary supervision for Frank, and avers that she and her husband would provide all necessary support for Frank. The petition also states that petitioner and her husband would provide full financial support and take full responsibility for the student. There is no indication that these new affidavits, and the significantly different information contained in the original affidavits, were ever provided to respondent's superintendent for his review although respondent had the opportunity to address them in this appeal.

I have carefully considered both sets of affidavits, and find that petitioner has not rebutted the presumption that Frank resides with his mother for purposes of Education Law "3202. Looking first at the initial affidavits filed with the school district, both affidavits listed school attendance as the primary reason for Frank's living with petitioner, although his mother secondarily referred to the need for a male role model. Both affidavits stated that Frank's mother would continue to provide $200 a month for his support, as well as providing him with health and dental insurance. Although petitioner indicated that the arrangement was permanent, Frank's mother indicated that the arrangement was only for the remainder of the current academic year and the following academic year, implying that the student would return to live with her during the summer break and after completion of the second academic year. The information contained in the affidavits failed to establish that there had been a total transfer of custody and control to petitioner, and strongly suggests that the overriding reason for the living arrangement was to permit the student to attend school in respondent's district (Appeal of Degorge, 39 Ed Dept Rep 590, Decision No. 14,321).

The new affidavits submitted with the petition contain substantially different information. However, petitioner provides no explanation whatsoever for the substantial change in information provided in the previous month in the first set of affidavits.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (Appeal of S.H., 40 Ed Dept Rep ___, Decision No. 14,578; Appeal of Camille S., 39 id. 574, Decision No. 14,316; Appeal of World Network International Services, Inc., 39 id. 30, Decision No. 14,164). I recognize that the parties are certainly within their rights to make changes to an ongoing custody arrangement. However, without any explanation for the different information in the new affidavits, dated only one month after the initial affidavits, I am constrained to conclude that petitioner has not sustained her burden of establishing that respondent's determination was arbitrary and capricious or affected by error of law (Appeal of Citarella, 39 Ed Dept Rep 64, Decision No. 14,174).

Although the petition must be dismissed upon the record before me, I note that petitioner has the right to reapply to the district for admission on Frank"s behalf at any time (Appeal of Smith, 39 Ed Dept Rep 28, Decision No. 14,163). Such application, if brought, should include an explanation of the seemingly inconsistent information in the two sets of affidavits.

THE APPEAL IS DISMISSED.

END OF FILE