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Decision No. 13,629

Appeal of JAMES M. O'MALLEY, individually and on behalf of his son, MICHAEL, from action of the Board of Education of the Niskayuna Central School District regarding residency.

Decision No. 13,629

(June 17, 1996)

Evans, Bankert, Cohen, Lutz & Panzone, Esqs., attorneys for petitioner, Robert J. Speidel, Esq., of counsel

Higgins, Roberts, Beyerl & Coan, P.C., attorneys for respondent, Michael E. Basile, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's determination that his son, Michael, is not a resident of the Niskayuna Central School District ("district"). The appeal must be dismissed.

Petitioner resides in New Hartford, New York, and is a resident of the New Hartford Central School District. Prior to the 1995-96 school year, petitioner's son, Michael, lived with petitioner in New Hartford.

During the 1994-95 school year, Michael was a member of the Capital District Select Hockey Team, a competitive, traveling ice hockey team based in Troy, New York. Through this affiliation, Michael met teammate Dwight Perry, a student in respondent's district. At some point, Dwight's parents, Michael and Patricia Perry, offered to let Michael live with them so that Michael would be closer to the practice rink in Troy, New York.

On or about August 25, 1995, petitioner attempted to register Michael in the district for the 1995-96 school year. At that time, petitioner submitted parent and custodial affidavits which stated that as of September 4, 1995, Michael would live with district residents, Michael and Patricia Perry, so that Michael could play on the Capital District Select Hockey Team. In addition, petitioner submitted a proposed guardianship agreement which purported to transfer guardianship of Michael from petitioner and his wife to Michael and Patricia Perry. The agreement stated it would become effective on or about September 4, 1995 and would remain in effect until Michael's eighteenth birthday, unless rescinded earlier by a written agreement signed by all parties.

On August 29, 1995, the district's superintendent denied petitioner's registration request. The superintendent also denied petitioner's request to pay tuition because the district does not accept tuition students. By letter dated August 30, 1995, petitioner's attorney appealed the superintendent's denial to respondent. Thereafter, the superintendent notified petitioner that his appeal would be considered at respondent's September 11, 1995 meeting and requested that petitioner submit any information to respondent prior to that date.

On or before September 7, 1995, petitioner enrolled Michael in Albany Academy, a private school in Albany, New York. On September 11, 1995, respondent board considered the issue of Michael's residency. By letter dated September 12, 1995, respondent determined that Michael was not a district resident. This appeal ensued.

Petitioner maintains that he and his wife surrendered custody of Michael to Michael and Patricia Perry and, therefore, Michael is entitled to attend the district's schools without the payment of tuition. Petitioner requests Michael's admission to the district's schools and respondent's reimbursement of Michael's tuition at Albany Academy. Respondent maintains that the totality of circumstances support its determination that Michael is not a resident of the 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 to students whose parents or legal guardians reside within the district (Appeal of Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted (Appeal of McMullan, 29 Ed Dept Rep 310). 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 Brutcher, supra; Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523). Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child's residence remains with the parent (see, Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279; 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 Ritter, 31 Ed Dept Rep 24; Appeal of McMullan, supra).

In this case, petitioner argues that the guardianship agreement that he and his wife executed with the Perrys establishes Michael's residence in the district. I note, however, that a court has not issued letters of guardianship to the Perrys. Moreover, even a legal guardianship cannot guarantee the determination of a child's residency. Parents may not transfer 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 Opurum, 35 Ed Dept Rep 364; Appeal of Pinto, 30 id. 374).

Although the guardianship agreement states that it will be effective on September 4, 1995, which is apparently Michael's sixteenth birthday, that date also coincides with the start of the school year. Further, the agreement states that it will remain in effect until Michael reaches majority, which, consequently will allow him to finish high school in the district, unless the agreement is revoked by the parties. Therefore, it appears that the agreement is constructed to allow Michael to attend the district's schools while he plays ice hockey.

In addition, in his memorandum of law, petitioner alleges for the first time that the O'Malleys and the Perrys decided to delay implementation of the guardianship agreement until respondent, or other appropriate authorities, recognized that the agreement established residency for purposes of Education Law '3202. Although a memorandum of law may not be used to belatedly add assertions or exhibits which should have been included in the petition (Appeal of O'Shaughnessy, 35 Ed Dept Rep 57), this allegation supports a finding that the guardianship agreement was intended solely to achieve residence status for school purposes.

Moreover, petitioner has failed to show that there has been a complete and total transfer of custody and control to the Perrys. In the parent and custodial affidavits submitted to the district, petitioner and Mr. Perry state that Mr. Perry will provide "necessities" but do not specifically state who will provide food and clothing. The affidavits also indicate that petitioner continues to provide health insurance for his son. In addition, petitioner does not dispute respondent's allegation that petitioner pays his son's ice hockey expenses.

Furthermore, the record reveals that when the superintendent rejected petitioner's initial request to enroll Michael, petitioner offered to pay Michael's tuition. Thereafter, prior to respondent's determination, petitioner enrolled Michael in a private school at his own expense. All of these factors indicate that petitioner remains financially responsible for Michael. Accordingly, respondent's determination will not be set aside.