Decision No. 13,640

(August 1, 1996)

William G. Zickl, Esq., attorney for petitioner

Harris Beach & Wilcox, LLP, attorneys for respondent, David W. Lippitt, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pavilion Central School District ("respondent") that his grandson, Thomas Burdick, is not a resident of the district. The appeal must be sustained in part.

Petitioner is a resident of respondent's district and Thomas's maternal grandfather. On November 1, 1995, Thomas began residing with his grandfather in respondent's district. Previously, Thomas resided with his parents in the Camden Central School District. In mid-November 1995, petitioner requested that respondent's district admit his grandson to school. In accordance with respondent's procedures, the high school principal requested that petitioner complete an affidavit and that the student's parents complete a sworn questionnaire with respect to the student's residency. In the sworn statement, Thomas's mother stated that Thomas had resided with his grandfather for less than one month and that Thomas was residing with his grandfather because it was the "child and the parents' mutual choice for the child's education." Petitioner's affidavit also indicated that the student was residing with him "to go to school."

Based on these statements, the superintendent directed the high school principal to contact the Camden Central School District to ascertain why Thomas was not attending school in that district. The principal was informed that Thomas had received a five day suspension from October 30 to November 3, 1995, and that he had not returned to school after the suspension. Based on that information, the superintendent denied Thomas admission to respondent's schools and notified Thomas and his grandparents of that decision by letter dated November 28, 1995. Petitioner subsequently provided respondent with a temporary order of custody signed by Judge Charles F. Graney of Genesee County Family Court and dated December 5, 1995. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on January 5, 1996.

Petitioner alleges that his grandson lives with him in respondent's district to assist him while he recovers from carpal tunnel surgeries. Respondent contends that Thomas is not a resident of the district and cannot attend school there.

Education Law '3202(1) provides, in pertinent part:

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 Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220). 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). 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 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 (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, 29 id. 310).

In this case, petitioner claims that he has custody of his grandson. The original documents submitted by both petitioner and Thomas's parents indicate that the student's residence with his grandfather is so that the student could attend school in respondent's district. Although petitioner provided respondent with a copy of the temporary custody order issued by Judge Graney, respondent was not a party to that action and believed that petitioner sought this order only to gain Thomas's admission to its schools. Based on the information before it, respondent determined that Thomas was not a resident of respondent's district.

Petitioner commenced this appeal on December 27, 1995 and states that the reason for his grandson's change of residence is to assist petitioner, since he has had multiple surgeries. However, he raises the issue of his surgeries for the first time in his petition. The record also indicates that Thomas previously attended school in the Camden Central School District and did not return after a five day suspension there. Immediately thereafter, petitioner sought to enroll Thomas in respondent's school. When respondent denied Thomas admission, petitioner entered into a guardianship agreement with Thomas's parents and sought a court order of custody. Furthermore, respondent contends that Thomas's parents provide him with health insurance, and petitioner does not refute that contention. These facts do not support petitioner's claim that Thomas is a resident of the district.

Although respondent's initial determination of Thomas's residency based on the documents submitted appears to be correct, the Genesee County Family Court has subequently issued a final custody order granting custody to petitioner. While I note that even a transfer of legal guardianship cannot guarantee the determination of a child's residency, some weight must be accorded to a final custody order of a family court. However, 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 O'Malley, Decision No. 13629, dated June 17, 1996; Appeal of Opurum, 35 Ed Dept Rep 364; Appeal of Pinto, 30 id. 374). Based on the record before me, I am unable to determine Thomas's residency and whether a total transfer of custody and control to petitioner has occurred. Therefore, I remand the matter back to the school district to make a determination of Thomas's residency based on the totality of the circumstances, including the final custody order of the Genesee County Family Court.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent hold a hearing pursuant to 8 NYCRR 100.2(y) to determine whether Thomas Burdick is a resident and entitled to attend the schools of the Pavilion Central School District.

IT IS FURTHER ORDERED that respondent permit Thomas to remain in school until respondent issues its residency determination.

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