Appeal of L.W., on behalf of her daughter, T.W., from action of the Board of Education of the Sodus Central School District regarding residency.

Decision No. 14,717

(April 19, 2002)

Burke, Albright, Harter, Rzepka & Reddy, LLP, attorneys for petitioner, Robert J. Burke, Esq., of counsel

Wayne A. Vander Byl, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sodus Central School District ("respondent") that her daughter, T.W., is not a district resident. The appeal must be dismissed.

T.W. was enrolled as a senior in respondent"s district during the 2001-2002 school year. Respondent began investigating her residency in early September 2001 after two recent graduates advised respondent"s superintendent that T.W. was living with her mother in Marion, outside respondent"s district.

By letter dated September 25, 2001, the superintendent notified petitioner that T.W. was not eligible to attend school in respondent"s district because petitioner did not reside in the district. The letter invited petitioner to submit additional evidence establishing T.W."s residency and advised, among other things, that T.W. would not be permitted to attend school in the district after September 28, 2001.

On September 27, 2001, the superintendent met with T.W."s grandfather who provided a copy of an April 5, 1999 order of the Family Court, Wayne County, placing T.W. in the custody of her grandparents, pursuant to a PINS proceeding. By letter dated September 27, 2001, the superintendent advised petitioner that, notwithstanding the Family Court order, she had determined that T.W. was not entitled to attend the district"s schools tuition-free. The superintendent outlined a number of factors upon which she based her determination, including, that the custody award had apparently expired upon the expiration of T.W."s probation in Family Court on June 30, 1999, T.W. is covered by her parent"s health insurance policy and is claimed as a dependent on her parents" income tax forms, and that T.W. maintains a telephone listing at her mother"s Marion address. This appeal ensued. Petitioner"s request for interim relief was denied on November 15, 2001.

Petitioner admits that she resides within the Marion Central School District, but alleges that T.W. has been living with petitioner"s father within respondent"s district since March 1999. Petitioner explains that in 1997 she experienced difficulties with T.W. that ultimately resulted in an adjudication by the Family Court that T.W. was a person in need of supervision. In March 1999, T.W. began living with her grandfather, and by order of the Family Court dated April 5, 1999, her grandfather and grandmother (who passed away shortly thereafter), were awarded custody of T.W. Petitioner maintains that she has surrendered parental control over T.W. to her grandfather. In support of this contention, petitioner submits a copy of an order from the Family Court, dated September 28, 2001, the day after respondent issued its residency determination, granting T.W."s grandfather temporary custody of T.W. However, petitioner also admits that she provides approximately $50 per week towards T.W."s support and maintenance, has T.W. covered under her health insurance policy, insures T.W."s car under her automobile insurance policy, and claims T.W. as a dependent on her tax returns. Petitioner also acknowledges that T.W. maintains "period contact" with her and visits petitioner at her Marion residence.

Respondent maintains that it correctly determined that T.W. is not a district resident. In support of this contention, respondent submits, among other things, an affidavit from one of its board members, whose daughter is friendly with T.W. The board member states that on several occasions during the 2000-2001 school year, he drove his daughter to petitioner"s home in Marion, where his daughter visited T.W. On one occasion, he commented to T.W. that her mother"s home was outside the district. T.W. responded that she paid tuition to attend school in respondent"s district.

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 Burdi, 39 Ed Dept Rep 176, Decision No. 14,206; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Burdi, supra; Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). 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 Burdi, supra, Appeal of Garretson, 31 Ed Dept Rep 542, Decision No. 12,729). 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 Burdi, supra; Appeal of Garretson, supra; Appeal of Aquila, 31 Ed Dept Rep 93, Decision No. 12,581). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Burdi, supra), 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 Burdi, supra; Appeal of Garretson, supra).

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 Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of a Student with a Disability, 37 id. 29, Decision No. 13,796; Appeal of Brutcher, 33 id. 56, Decision No. 12,973). Parents may not transfer custody or 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 a Student with a Disability, supra; Appeal of O'Malley, 35 Ed Dept Rep 550, Decision No. 13,629). Even if custody orders or letters of guardianship are issued by a court, the presumption of a child's residence with the guardian or custodian can be rebutted if it can be shown that the guardianship or transfer of custody was established merely for the purpose of circumventing a district's nonresident policy (Appeal of Gilbert, 37 Ed Dept Rep 43, Decision No. 13,798).

However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Burdi, supra; Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465) or the hardships of single parenting (Appeal of Burdi, 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 Burdi, supra; Appeal of Lebron, 35 Ed Dept Rep 359, Decision No. 13,570; Appeal of McMullan, supra).

Based on the evidence before me, I cannot conclude that respondent"s determination that T.W. is not a district resident is arbitrary or capricious. Preliminarily, I note that neither court order submitted by petitioner is persuasive proof that T.W. resides with her grandfather. It appears that the April 5, 1999 order of the Family Court issued pursuant to a PINS petition, was in effect only for the duration of T.W."s probationary period, which expired on June 30, 1999. Accordingly, it does not create a presumption that T.W. is currently living with her grandfather. Further, the September 28, 2001 order, obtained the day after respondent issued its residency determination, was apparently sought to circumvent respondent"s September 27, 2001 residency determination, and accordingly, does not establish that T.W. resides in the district. In fact, the custody petition states, in part, that T.W."s "grandfather needs immediate custody of [T.W.] so she can continue in school so she will be able to graduate" (see, Appeal of White, 39 Ed Dept Rep 103, Decision No. 14,186). Petitioner must, therefore, overcome the presumption that T.W. resides with her in Marion. Although petitioner asserts that she has relinquished control of T.W. to her grandfather, petitioner"s own admissions establish that petitioner continues to exercise control over the child and responsibility for her support. Petitioner admits that 1) she gives T.W."s grandfather $50 per week for support; 2) T.W. is covered under petitioner"s health care policy; 3) T.W. is claimed as a dependent on petitioner"s income tax returns; and 4) T.W."s car is insured through petitioner"s automobile insurance policy. Petitioner also acknowledges that T.W. continues to maintain a relationship with her and, on occasion, stays with petitioner in Marion. While any of these factors alone do not necessarily preclude a finding that the parent has relinquished control of the child, their collective weight supports the conclusion that petitioner has not, in fact, permanently transferred custody and control of T.W. Further, although respondent"s proof is less than conclusive on the issue, respondent has presented some evidence to suggest that T.W. does, in fact, spend considerable time at her mother"s address outside the district.

In sum, petitioner has failed to rebut the presumption that T.W. resides with her outside the district. Accordingly, I find no basis to overturn respondent"s residency determination.

THE APPEAL IS DISMISSED.

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