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Decision No. 12,869

Appeal of MARIANNE HERB KAESER, on behalf of her daughter, TARA KAESER, from action of the Board of Education of the Valley Stream Unified School District regarding residency.

Decision No. 12,869

(December 29, 1992)

Albert A. D'Agostino, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's decision that since her daughter is not a resident of the district, she is not entitled to attend school there. The appeal must be dismissed.

Petitioner resides with her daughter in the City School District of the City of New York and is employed at a location within the Valley Stream Unified School District ("the district"). In September 1990, petitioner enrolled her daughter in the Valley Stream Central School District where she attended school through the 1991-92 school year. While petitioner worked, she arranged for her daughter's child care and transportation to school with a woman who apparently lives in the district.

Sometime in 1990, respondent raised questions regarding the student's residence. In an attempt to secure her daughter's right to attend school in respondent's district, petitioner went to court to have letters of guardianship issued to the woman providing her daughter's child care. On February 4, 1992, the New York State Family Court, Nassau County, issued the letters of guardianship.

In June 1992, respondent, once again, questioned petitioner's residency. In response, petitioner met with respondent's superintendent and the principal of the school where her daughter attended to explain the hardship of being a single parent who works a shift from 6:00 a.m. to 6:00 p.m. five days a week. By letter dated July 2, 1992, respondent informed petitioner of its determination that since her daughter was not a resident of the district she was not entitled to attend school there. On August 27, 1992, petitioner commenced this appeal.

Respondent contends that the appeal should be dismissed as untimely. In addition, respondent asserts that the appeal should be dismissed on the merits since petitioner admits she is not a resident of the district.

Although the hardship petitioner describes is not to be minimized, I am constrained to decide this matter solely on the law which limits the obligation of a local district to provide free education to the children who reside there (Appeal of Stokes, 32 Ed Dept Rep 93; Appeal of Wilkerson, 32 id. 58). Specifically, Education Law '3202(1) provides:

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 (emphasis added).

Although a child's residence is presumed to be that of his parents or legal guardian, the presumption is rebuttable (Appeal of Colas, 32 Ed Dept Rep 128; Appeal of Pinto, 30 id. 374). In any case, a legal residence is acquired by one's physical presence as an inhabitant of the district combined with an intent to remain (Appeal of Reifler, 31 Ed Dept Rep 235). Therefore, even in cases where a legal guardian is appointed by the court, the child's residence controls where a child is entitled to attend school.

Petitioner admits that she resides with her daughter outside the district. Although the record reflects that letters of guardianship were issued to a woman who apparently lives in respondent's district, petitioner admits that her decision to transfer guardianship was taken solely to establish her daughter's right to attend school in respondent's district. Although the law presumes that a child resides with his/her parent or legal guardian, a change of residence is not automatically triggered by a change in guardianship. As occurred here, when such a transfer is "on paper only," unaccompanied by a bonafide transfer of a child's physical and legal custody to the guardian, guardianship does not determine the child's right to attend school. To the extent the transfer is obtained solely to obtain a free education from a district other than the district of the child's actual residence, the guardianship is a sham (see, Matter of Proios, 111 Misc 2d 252; Appeal of Pinto, supra). Since the facts establish that petitioner's daughter does not reside with her legal guardian in respondent's district and the guardianship was established solely to obtain a free education in the schools of respondent's district, I am compelled to dismiss the appeal.

Since the appeal is dismissed on the merits, it is unnecessary to address respondent's remaining contentions.