Appeal of EULAH NELSON, on behalf of her grandson CHRISTIAN ROBINSON, from action of the Board of Education of the Pittsford Central School District regarding residency.

 

 

(July 15,2004) 

 

Harris Beach LLP, attorneys for respondent, Laura M. Purcell, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Pittsford Central School District ("respondent") that her grandson, Christian, is not a district resident.  The appeal must be dismissed.

Since September 1998, Christian has attended respondent's schools.  Respondent permitted Christian to enroll based upon his mother's representation that she resided with her parents (Christian's grandparents) on Mile Post Lane within the district. 

In June 2003, the principal of Jefferson Road Elementary School notified respondent's director of pupil services that Christian had made comments indicating that he did not reside within the district.  The director of pupil services contacted respondent's director of transportation to learn whether Christian was riding the bus to and from the Mile Post Lane residence. 

The director of transportation spoke with Christian's bus driver, who informed him that the Mile Post Lane residence was Christian's grandparents' house and that Christian's mother lived elsewhere.  The bus driver further stated that Christian did not take the bus in the morning because his mother drove him to school, and that each afternoon, Christian's mother picked him up in her car after he was dropped off at the bus stop near the Mile Post Lane residence.

At the beginning of the 2003-2004 school year, Christian"s bus driver reported to the assistant to the transportation director ("assistant") that Christian did not ride the bus in the mornings and that in the afternoons his mother picked him up from the bus stop in a white Honda.  The assistant determined that the white Honda was registered to Christian's mother at a French Road residence in Rochester, within the Brighton Central School District.

The director of pupil services contacted a private investigator, who surveilled both the Mile Post Lane and French Road residences from September 22 to September 26, 2003 and again from October 20 to October 24, 2003.   On seven mornings, he observed Christian being driven to school from his mother's French Road residence or the bus stop near the Mile Post Lane residence.  On seven afternoons, the investigator observed Christian being dropped off by the school bus, near the Mile Post Lane residence, and either picked up by his mother or transported to church activities by his grandparents.  On eight evenings, he observed Christian being driven to his mother's French Road residence after church activities.

     By letter dated December 2, 2003, the director of pupil services advised Christian's mother that, based upon the district's investigation, the district had determined that Christian was not a district resident and was not entitled to attend respondent's schools after December 19, 2003.  By letter dated December 8, 2003, petitioner stated that guardianship had been given to her and her husband.  This appeal ensued.  Petitioner's request for interim relief was denied on December 29, 2003. 

     Petitioner contends that Christian is a district resident because his mother transferred guardianship and surrendered parental control to petitioner and her husband.  Petitioner admits that Christian's mother remarried and moved out of the district in October 2002.  Petitioner claims, however, that Christian has continued to reside with her and her husband because it is in Christian's best interest to remain in a stable environment.

     Respondent contends that petitioner has failed to demonstrate that Christian is a district resident because the transfer of Christian's custody and control to petitioner and her husband was neither total nor permanent.

 

      In an appeal to the Commissioner pursuant to Education Law "310, a petitioner has the burden of demonstrating a clear right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Green, 40 Ed Dept Rep 278, Decision No. 14,479; Appeal of a Student with a Disability, 40 id. 121, Decision No. 14,436).

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 Humphrey, 43 Ed Dept Rep____, Decision No. 14,940; Appeal of Thomas, 41 id. 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, Decision No. 14,603).  A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of Humphrey, supra; Appeal of Thomas, supra; Appeal of Santana, 40 Ed Dept Rep 57, Decision No. 14,420). This presumption may be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Maxwell, 42 Ed Dept Rep 134, Decision No. 14,799; Appeal of Donohue, 41 id. 26, Decision No. 14,601; Appeal of Juarez, 39 id. 184, Decision No. 14,208). A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of A.F., 41 Ed Dept Rep 115, Decision No. 14,633; Appeal of Karmin, 41 id. 72, Decision No. 14,618). 

Upon the record before me, petitioner has failed to rebut the presumption that Christian resides with his mother. Respondent's surveillance supports its determination that Christian lives with his mother outside of the district.  Petitioner has not submitted any evidence to challenge the surveillance findings.

Furthermore, petitioner has failed to prove that there was total and permanent transfer of custody and control to petitioner and her husband.  The petition states that both petitioner and Christian's mother support Christian and provide him with food, shelter and clothing.  The petition also asserts that both petitioner and Christian's mother exercise control over his activities and behaviors.  In addition, the petition claims that Christian communicates with his mother daily and spends every weekend with her.  The record further shows that only Christian's mother has interacted with district personnel regarding educational and related matters.

Moreover, petitioner failed to provide evidence of a transfer of guardianship.  According to respondent, petitioner did not notify the district of the purported transfer until after it determined that Christian was not a district resident.  Where the sole reason the child claims to reside with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of a Student with a Disability, supra; Appeal of West, 36 Ed Dept Rep 76, Decision No. 13,662).

Based on these facts, I find that petitioner has failed to provide sufficient evidence to rebut the presumption that Christian resides with his mother outside the district.  Accordingly, respondent's determination is neither arbitrary nor capricious and will not be set aside. 

THE APPEAL IS DISMISSED.

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