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Decision No. 14,784

Appeal of THOMAS A. RIVERS, JR., on behalf of ANGIE LEE RIVERS and NICKLAS JAMES RIVERS, from action of the Board of Education of the Waterloo Central School District regarding residency.

Decision No. 14,784

(August 21, 2002)

Legal Assistance of the Finger Lakes, attorneys for petitioner, Jeffrey L. Hogue, Esq., of counsel

McGowan and Brownell, attorneys for respondent, William F. McGowan, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Waterloo Central School District ("respondent") that his son, Nicklas, and daughter, Angie, are not district residents. The appeal must be sustained.

Petitioner and his wife moved to respondent"s district in April 2002. On April 30, 2002 petitioner"s wife attempted to register the two children for school in respondent"s district. Because Mrs. Rivers is not the biological mother of the children, respondent asked to meet with petitioner and requested that he bring in proof of residency. Petitioner met with respondent"s assistant superintendent on May 2, 2002 and informed him that he is the biological father of both Nicklas and Angie, but has no formal custody order. The assistant superintendent told petitioner that he would need to present some written evidence of custodial responsibility prior to the admission of his children to respondent"s schools. Respondent received the children"s education records, and birth certificates, but petitioner did not present additional written evidence of custody. After the assistant superintendent refused to admit the children, petitioner sought legal advice and commenced this appeal on June 7, 2002.

By letter dated June 12, 2002 the assistant superintendent agreed to conditionally admit petitioner"s children to respondent"s schools provided petitioner obtained a notarized statement from the children"s mother verifying her surrender of custodial control to him, and a determination of the Seneca County Social Services Department regarding custody. Petitioner"s request for interim relief was denied on June 27, 2002, because the children had already been admitted to respondent"s school for the remainder of the school year.

Petitioner contends that he is the children"s biological father, though he was never married to their mother. Nicklas"s birth certificate lists his last name as Rivers and identifies petitioner as the father. Angie"s birth certificate also lists her last name as Rivers. In the space on the birth certificate provided for "father," the clerk crossed out the word and typed in "Husband." Petitioner alleges that this was done because he, not the mother"s husband, is Angie"s biological father. Petitioner asserts that in 1995, he, the children and their mother moved to New York. Petitioner claims he lost touch with their mother and the children for a time, but was contacted by his half-brother and informed that the mother had left the children with him. Petitioner maintains that the children"s mother has abandoned them, has not had contact with them or petitioner since 1997, and her whereabouts are unknown. Petitioner further maintains that he provides food, clothing and shelter, and has acted in a parental role since the children"s mother left. Petitioner also alleges that respondent failed to provide notice and a residency hearing as required by "100.2(y) of the Commissioner"s regulations.

Respondent contends that petitioner has no proof of custody of the children. Absent such proof respondent claims it is not required to admit the children to its schools.

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 Pierre, 40 Ed Dept Rep 538, Decision No. 14,551; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Morgan, 38 id. 207, Decision No. 14,016). 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 id. 199, Decision No. 14,014). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Hardick, 41 Ed Dept Rep ___, Decision No. 14,693; Appeal of Epps, supra; Appeal of Pernell, 30 id. 380, Decision No. 12,502), 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 Hardick, supra; Appeal of Epps, supra; Appeal of Rivera, 38 Ed Dept Rep 119, Decision No. 13,997). In this case, respondent does not dispute that the children reside in the district with petitioner; it only questions his relationship to the children.

Respondent indicates that the primary basis for its determination is the fact that petitioner has not been appointed legal guardian and does not have papers proving custody of the children. It is well settled, however, that a school district may not require the appointment of a legal guardian as a condition precedent to admission of a child to its schools (see Simms, et al. v. Roosevelt UFSD, et al., 100 Misc 2d 827; Appeal of Pryor, 29 Ed Dept Rep 505, Decision No. 12,366).

Petitioner alleges that the children are his, that he exercises control over them, and has had full responsibility and authority with respect to their support and custody since 1997. It is undisputed that petitioner is the legal father of Nicklas, as his name appears on the child"s birth certificate. It also appears that he is the father of Angie, though the child"s birth certificate is ambiguous as to her paternity.

Subdivision 1 of Education Law "3212 provides:

As used in this article, a person in parental relation to another individual shall include his father or mother, by birth or adoption, his step-father or step-mother, his legally appointed guardian, or his custodian. A person shall be regarded as the custodian of another individual if he has assumed the charge and care of such individual because the parents or legally appointed guardian of such individual have died, are imprisoned, are mentally ill, or have been committed to an institution, or because, they have abandoned or deserted such individual or are living outside the state or their whereabouts are unknown.

Even if petitioner were not the birth father of Angie and Nicklas, based upon the record before me, he meets the statutory definition of "custodian." There is absolutely no evidence in the record that the children have any other responsible adult claiming to be their parent or guardian. The children are eight and nine years old, and have been cared for by petitioner for the past five years. Petitioner has provided copies of the children"s previous school records, their social security cards and birth certificates. A parental relationship "encompasses something more than parenthood and judicial guardianship. Any regulation or policy of a school district which purports to circumscribe the perimeters of subdivision 1 of section 3212 would, of course, run contrary to it and be invalid," (Simms, et al. v. Roosevelt UFSD, et al., supra). Therefore, under the facts as presented in this appeal, respondent cannot condition the admission of petitioner"s children to its schools upon legal documentation of custody. Petitioner"s children are entitled to attend the schools of respondent"s district as residents.

Petitioner also alleges that respondent failed to follow the Commissioner"s regulations for determining questions of residency. The record indicates that petitioner requested enrollment of his children on or about April 30, 2002. Respondent"s assistant superintendent refused to admit the children and requested additional documentation of custody throughout the month of May. No hearing was held and no letter was sent advising petitioner of his right to appeal a decision, as required by "100.2(y) of the Commissioner"s regulations. Due to respondent"s failure to follow proper procedures, petitioner"s children missed six weeks of schooling. Under the circumstances, this was inexcusable, and I admonish respondent to adhere to this regulation in the future.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Angie Lee Rivers and Nicklas James Rivers to attend school in the Waterloo Central School District without the payment of tuition.

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