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Decision No. 14,854

Appeal of MARK McGRATH and MAUREEN McGRAIL, on behalf of their daughter MEGHAN McGRAIL, from action of the Board of Education of the Greece Central School District regarding residency.

 

Decision No. 14,854

 

(March 27, 2003)

 

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

MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the Greece Central School District ("respondent") that their daughter is not a district resident.  The appeal must be dismissed.

Petitioners are the parents of Meghan McGrail, a tenth grade student.  Petitioner Mark McGrath lives outside respondent district, in the East Irondequoit Central School District.  Petitioner Maureen McGrail lives in Florida.

It appears that prior to the opening of school in September 2001, Meghan and her mother began living with Meghan"s maternal grandmother, Betty McGrail, who resides within respondent district.  Meghan attended respondent"s high school, Greece Athena, from September 2001 through April 22, 2002, when Meghan and her mother moved to Florida.

In August 2002, Meghan returned to New York State to live with her father.  It appears that Meghan"s father enrolled her at Eastridge High School, in the East Irondequoit Central School District, at the beginning of the 2002-2003 school year.  Thereafter, on September 18, 2002, Mr. McGrath attempted to enroll her at Greece Athena High School in respondent district.  In the course of doing so, Mr. McGrath executed a residence affidavit in which he indicated that Meghan was living with her maternal grandmother, and "would rather go to . . . Greece Athena High School because of . . . friends at school."  He also indicated that he would be providing some support, care or supervision for Meghan.

On September 20, 2002, Meghan was denied admission by Donald O. Nadolinski, the school official designated by respondent to determine residency matters.  The denial letter cited portions of the residence affidavit, and concluded that there had been no permanent transfer of custody and control in this matter.  Respondent district does not accept non-resident students.

This appeal was commenced September 30, 2002, and petitioners" request for an interim order allowing Meghan to attend Greece Athena High School in respondent district during the pendency of the appeal was denied by letter dated October 16, 2002.  Since the request for interim relief was denied, petitioners have filed neither a reply nor a memorandum of law.

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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926; Appeal of Simond, 36 id. 117, Decision No. 13,675).  It is presumed that a child resides with his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, supra; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787).  However, this presumption may be rebutted in a proper case (Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465; Appeal of McMullan, 29 id. 310, Decision No. 12,304).  To rebut the presumption, 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, 39 Ed Dept Rep 778, Decision No. 14,377; Appeal of Garretson, 31 id. 542, Decision No. 12,729).  Where the facts of the situation contradict the claim of a complete transfer of custody, the presumption of residence with the student's parent is not rebutted (see, Appeal of Galay, et al., 37 Ed Dept Rep 128, Decision No. 13,821; Appeal of Simond, supra).

There has been no complete transfer of custody here, since there is no indication that petitioners have relinquished parental control over their daughter.  It appears that the real reasons for seeking Meghan"s admission to Greece Athena are that her father has employment commitments that make supervision difficult, and that Meghan would prefer to attend Greece Athena because of certain friendships and relationships she developed there during the 2001-2002 school year.  While this rationale is certainly understandable from Meghan"s perspective, it is not legally sufficient to establish residency.  Under these circumstances, the record before me provides no basis to find that respondent acted arbitrarily in determining that Meghan McGrail is not a resident of the Greece Central School District.  

THE APPEAL IS DISMISSED.

END OF FILE