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Decision No. 13,796

Appeal of A STUDENT WITH A DISABILITY, by his grandparents, from action of the Board of Education of the City School District of the City of Oswego regarding residency.

Decision No. 13,796

(July 24, 1997)

Susan E. Rodems, Esq., attorney for petitioners

Michael J. Stanley, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the City School District of the City of Oswego ("respondent") that their grandson is not a district resident for the purposes of attending its schools tuition-free. The appeal must be dismissed.

Petitioners are residents of respondent's school district and paternal grandparents of the student who is the subject of this appeal. Prior to January 30, 1996, the student, now age 14, resided with his parents and attended the Hannibal Central School District ("Hannibal"), where he was classified as learning disabled. When the student's parents disagreed with Hannibal over its implementation of the student's Individualized Education Plan (IEP), they requested an impartial hearing, which resulted in a settlement. Petitioners allege that Hannibal failed to implement the terms of the settlement and to provide the student with an appropriate education. They contend that as a result the student experienced extreme stress and developed health problems.

On January 30, 1996, the student moved into petitioners' home in respondent's school district. They filed for a transfer of custody and enrolled the child in respondent's school district. An Order of Custody dated February 2, 1996 was entered on March 28, 1996 in the Oswego County Family Court, granting petitioners physical custody and granting petitioners joint legal custody with the student's parents.

On or about March 7, 1996, petitioners were notified that the child was not entitled to attend respondent's school district because his parents did not reside in the district. Petitioners appealed to respondent board, which found that the presumption of parental residence had not been rebutted because the child's parents had not surrendered custody and control and the sole reason that the child was living with petitioners was to take advantage of services available in respondent's school district. This determination was the subject of a prior appeal to the Commissioner. In that case, I remanded the issue to the district due to respondent's failure to comply with procedures required by Commissioner's regulations related to residency determinations (Appeal of a Student with a Disability, 36 Ed Dept Rep 81).

On September 24, 1996, respondent held a residency hearing and again concluded that the presumption that a child's legal residence is that of his/her natural parents had not been rebutted. This appeal ensued. Petitioners request that I find the child is, and has been, a resident of respondent's school district since January 30, 1996 and award attorney's fees. Petitioners' request for interim relief pending a decision on the merits was granted on January 16, 1997.

Petitioners contend that their transfer of custody was complete and permanent and that the sole reason for the transfer of custody was concern for the child's health. Respondents contend, inter alia, that the sole purpose of transferring custody was to remove the student from Hannibal, and that the presumption of parental residency has not been rebutted because petitioners have failed to demonstrate a total and permanent transfer of custody.

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 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).

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 Brutcher, 33 Ed Dept Rep 56; Appeal of Ritter, 31 id. 24; Appeal of McMullan, 29 id. 310). Moreover, the law is clear that 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, 35 Ed Dept Rep 550; Appeal of Opurum, 35 id. 364; Appeal of Brutcher, supra; Appeal of Pinto, supra.

Petitioners argue that the sole reason for the transfer of custody was concern for their child's health. They provide statements from the child's physician indicating that the boy was under considerable stress and suffered from severe stomach cramps, anorexia, pallor, and some weight loss. The physician stated that he believed that the changes in the student's health were directly related to his school situation and recommended that he be transferred from Hannibal to respondent's school district.

An analysis of petitioners' argument that custody was transferred for the purpose of improving the child's health, not for the purpose of changing schools, leads me to two related conclusions. First, the reason the student's family changed school districts was to improve the child's health, and second, the reason for the change in custody was to change school districts. Thus, ultimately, the change in custody would hopefully result in a resolution to the student's health problems. While I sympathize with the family's concern for the child's health, I must find that the reason the child moved to petitioners' home was expressly for the purpose of changing school districts. There is no indication that the child would have moved in with petitioners if it did not result in a change in schools. Rather, the child's mother stated in an affidavit dated April 17, 1996 "your deponent relinquished physical custody of the child to the child's paternal grandparents through the Oswego County Family Court so that the child could attend the Oswego City School District." As such, the student has not established residence in respondent's school district for the purposes of attending the district's schools tuition-free.

Petitioners further argue that courts will not transfer legal guardianship if the purpose is to defeat the district's policy of excluding nonresidents. While some courts may refuse to transfer legal guardianship for such purposes, the reverse is not necessarily true. In other words, the fact that a court has transferred custody or guardianship does not necessarily mean that the court has determined that the transfer is not for the purpose of attending another school district. In this case, for example, the order of custody specifically stated that the court was limited in its jurisdiction and that a court of competent jurisdiction would have to address questions concerning the student's education.

As I indicated to petitioners in their previous appeal, if the student's parents felt that Hannibal failed to implement the terms of the settlement, they had the right to request a new impartial hearing which, if necessary, could be appealed to the State Review Officer (SRO). If necessary, the determination of the SRO could then be appealed in state or federal court in an effort to secure proper services for their son. Finally, where a public school fails to provide a disabled child with an appropriate education under the Individuals with Disabilities Education Act (IDEA), and the parents unilaterally withdraw their child from the public school and place the child in a private school that provides an appropriate education under the IDEA, the parents may be entitled to reimbursement for tuition and related educational expenses (Florence County Sch. Dist. Four v. Carter, 510 US 7).

However, in this case, the student's parents determined that it would be in their son's best interest to be transferred to the custody of his grandparents and enrolled in respondent's school district. While I share the family's concern for the health of this child and am concerned over their dissatisfaction with their school district, placing the child with petitioners for the purpose of having him attend respondent's school district cannot fairly shift to respondent the responsibility for this child's education.

Due to the disposition of this appeal, I will not address the parties' remaining contentions.