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Decision No. 13,798

Application to reopen the appeal of HARLAN E. GILBERT, on behalf of THOMAS BURDICK, from action of the Board of Education of the Pavilion Central School District regarding residency.

Appeal of HARLAN E. GILBERT, on behalf of THOMAS BURDICK, from action of the Board of Education of the Pavilion Central School District regarding residency.

Decision No. 13,798

(July 28, 1997)

William G. Zickl, Esq., attorney for petitioner

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

MILLS, Commissioner.--In the first proceeding herein, the Board of Education of the Pavilion Central School District applies to reopen Decision No. 13640, dated August 1, 1996, which sustained in part petitioner's appeal of respondent's determination that Thomas Burdick was not a resident of the district, and remanded the matter to respondent for further consideration. In the second proceeding, petitioner Gilbert appeals the district's subsequent decision on remand that Thomas Burdick is not a resident of the district. Since the application and appeal arise out of the same facts, they are consolidated for decision. The application must be denied and the appeal must be dismissed.

I will first address the application to reopen Appeal of Gilbert, 36 Ed Dept Rep 19. Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that an application to reopen is addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made.

Petitioner alleges that the decision rendered in Appeal of Gilbert, 36 Ed Dept Rep 19, remanding the issue of Thomas Burdick's residency to the board of education for further consideration was based upon a misapprehension of the facts. Petitioner contends I misapprehended the facts before me by considering a final order of the Family Court that was not a part of the record. Petitioner alleges that I improperly considered the final custody order of the Family Court in determining that the matter should be remanded to the district for further proceedings consistent with that order. Respondent Gilbert did not submit an answer for consideration in the application to reopen the prior appeal.

The application must be dismissed. I find no misapprehension of fact in the original decision, nor do I find any new and material evidence which was not available at the time of the original decision. While the district asserts that I should not have considered the final court order in the original appeal, there is no legal authority prohibiting me, as adjudicator, from taking judicial notice of the fact that the Genesee Family Court had issued a final custody order. Moreover, I do not find the consideration of that document in my judicial capacity to be a misapprehension as to the facts or new or material evidence which was not available at the time of the original decision since the record clearly indicated that a temporary order was in place when the district made its original residency determination. While it is regrettable that petitioner Gilbert's attorney failed to provide respondent with a copy of the final order, it is not a basis to grant the application for reopening. Therefore, the application is denied.

I will now turn to the matter of the appeal brought by petitioner Gilbert concerning respondent's residency determination dated October 15, 1996. Pursuant to the remand in Appeal of Gilbert, 36 Ed Dept Rep 19, respondent's superintendent reconsidered the district's determination that petitioner was not a resident of the district. The superintendent again reviewed the evidence, including the sworn questionnaire filled out by Thomas' mother on May 17, 1995, petitioner's affidavit dated November 20, 1995, the district's initial determination regarding residence, the Custody and Guardianship authorization signed by Thomas' parents on December 6, 1995, the temporary and final Family Court Orders of December 5, 1995 and January 10, 1996, respectively, and the documents submitted by petitioner in his appeal to the Commissioner.

In a letter dated September 30, 1996, respondent's superintendent notified petitioner that, upon reconsideration of all the above information, including the final Family Court Order of January 10, 1996, he had, nevertheless, again determined that Thomas was not a resident of the district. By letter dated October 11, 1996, petitioner's attorney submitted additional documents pertaining to the residency issue. By letter dated October 15, 1996, the superintendent informed petitioner that he reviewed the information submitted by the attorney and other information pertaining to the case and determined that Thomas was not a resident of the district entitled to attend school there. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits of the appeal was withdrawn when respondent agreed to permit Thomas to attend school pending my final determination.

Petitioner alleges that Thomas resides with him in the district to assist him while he recovers from carpal tunnel surgeries. Respondent contends that Thomas 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 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-Curren and Knop, 18 id. 523). However, when 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 Pinto, 30 id. 374; Appeal of McMullan, 29 id. 310).

Furthermore, where a court has issued letters of guardianship to an adult residing within a given district, the ward is presumed to reside in that school district (Appeal of Britton, 33 Ed Dept Rep 120; Appeal of Hilaire, 31 id. 84). The presumption of a ward's residence can be rebutted if, for example, it can be shown that the guardianship was established merely for the purpose of circumventing a district's nonresident policy (Appeal of Pinto, 30 Ed Dept Rep 374). In fact, the courts have refused to transfer legal guardianship if it is apparent that the purpose of the transfer is to defeat the school district's policy to excluded nonresidents (Matter of Proios, 111 Misc.2d 252).

In this case, petitioner sought an order of custody from the Genesee County Family Court and a final order of custody was granted on January 10, 1996. However, the record in this case indicates that when petitioner enrolled Thomas in the district's schools, he indicated in an affidavit dated November 20, 1995 that the purpose of the student's residence was to attend school in the district. In the petition for custody before the Family Court, petitioner stated that the change of custody was "to help grandfather andgotoschool" and to assist petitioner after surgery starting December 7, 1995 (emphasis supplied). I note that the medical opinion submitted by petitioner in this appeal indicates that petitioner's surgery took place in December 1995 and his post operative complications ensued until approximately March 1996. Consequently, I find the medical issue is not dispositive of the residency question.

In this case, petitioner's reliance on the family court order as determinative of his grandson's residency is misplaced. While letters of guardianship may not be used to transfer custody of a child merely to achieve residence statue for the child to take advantage of the local schools (Appeal of Opurum, 35 Ed Dept Rep 364), the same holds true for family court orders obtained for such purpose. Petitioner's November 20, 1995 affidavit and the Family Court petition both indicate that petitioner's grandson's residency was established to permit him to attend school in respondent's district. Therefore, I conclude that after reviewing all relevant documentation, including the final Family Court order, respondent correctly determined that the Family Court order was sought for the purpose of establishing school district residency, and I cannot recognize residency based on a custody order entered into for that purpose. Since the presumption of residence within the parents' school district has not been rebutted in this case, respondent's determination will not be set aside.