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Decision No. 14,005

Appeal of JENNIFER CRON, on behalf of MARK E. WARD, JR., from action of the Board of Education of the Tioga Central School District regarding residency.

Decision No. 14,005

(September 2, 1998)

Earl D. Butler, P.C., attorney for petitioner, David E. Butler, Esq., of counsel

Hogan & Sarzynski, LLP, attorneys for respondent, Michael Surowka, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Tioga Central School District ("respondent") that Mark E. Ward, Jr. is not a district resident entitled to attend its schools tuition-free. The appeal must be dismissed.

Petitioner is Mark's paternal aunt, and resides within respondent's district in the Town of Nichols. Pursuant to an order issued by the Tioga County Family Court on September 11, 1997, petitioner also shares joint custody of Mark with Mark's parents and petitioner's husband, Jeffrey Cron. Mark's parents, Karen and Mark Ward, Sr., reside in Owego, New York, within the Owego-Apalachin Central School District ("Owego-Apalachin").

Until April 1997, Mark attended middle school in Owego-Apalachin. Due to behavior problems during the 1996-97 school year, which Mark's parents attributed to the bad influence of a group of other students, Mark's parents removed him from the Owego-Apalachin school and enrolled him as a nonresident, tuition-paying student at the Tioga Middle School in respondent's district. There is a discrepancy in the record as to the exact reason for the removal. The Wards state that Mark was permanently expelled from Owego-Apalachin, and enrollment in the Tioga Central School District ("Tioga") was necessary to ensure that Mark received an education. However, the superintendent of Owego-Apalachin submitted an affidavit explaining that Mark had not been expelled, but the district administration had determined that Mark should be placed in an alternative program operated by BOCES due to his behavior problems.

Mark completed the 1996-97 school year in respondent's district, and the Wards and petitioner assert that Mark flourished at his new school. In July 1997, the Wards submitted an application for admittance as a nonresident student to Tioga for the 1997-98 school year. The application was denied.

On or about September 2, 1997, Mark's parents filed a custody petition with the Tioga County Family Court, seeking to share joint custody of Mark with Jennifer and Jeffrey Cron, with primary physical residence with the Crons in the respondent district. In papers filed with the Family Court, the Wards clearly indicated that the motivation for filing the joint custody application was respondent's refusal to enroll Mark as a nonresident student.

The Wards stated in the Family Court papers that, because Owego-Apalachin intended to place Mark in an inappropriate alternative education program in Harpursville, almost 40 miles away, and respondent refused to permit Mark to enroll in its schools unless he was a resident, the parents had no alternative but to allow Mark to reside with the Crons. The Wards further stated that a court order granting custody was necessary to permit Mark to enroll as a resident student. The Family Court application recited that Mark would live with the Crons Monday through Friday, and would visit his parents on the weekends. An order approving the joint custody arrangement was issued on September 11, 1997 subsequent to an ACCORD mediation agreement dated September 2, 1997 agreeing to the joint custody.

On September 4, 1997, Mark and the four joint custodians submitted a residence questionnaire to respondent. In the questionnaire, they noted that Mark had started living with the Crons on September 2, 1997. Health insurance was being provided through his mother's HMO coverage. In response to a question asking for details of how the student came to reside with a person other than his parents, the Wards and Crons wrote "for a change of social environment." When asked whether Mark was receiving financial or other support from the Crons, their response was ambiguous. They responded "yes" and noted "moral support" although the words "financial support" were circled. For the approximate dollar amount of support received from persons other than his parents each week, the Wards and Crons wrote "N/A."

In addition to this ambiguous declaration regarding financial support, Mr. Ward stated in an affidavit dated September 25, 1997, submitted in this appeal, that the Crons are supporting Mark and Mr. Ward is not paying any money to the Crons for his support. Petitioner does not provide any clarification. Although she states generally in the petition that she and her husband are providing "care and support for [Mark] and are exercising control over his daily ... activities," petitioner makes no express representations about responsibility for Mark's financial support.

Assistant Superintendent Houseknecht, respondent's designee for residency matters, spoke with Mr. Ward by telephone on September 9, 1997. Mr. Ward admitted to him that, although he hated to do it, custody of Mark was being transferred to his sister so that Mark would be a resident of Tioga. Mr. Ward refused to send Mark to Owego-Apalachin, because the administration intended to assign him to an alternative program that Mr. Ward considered to be inappropriate.

Mr. Houseknecht also spoke to Jeffrey Cron on September 9, 1997 about the reason for the ACCORD mediation agreement. Mr. Cron advised him that the mediation was not due to any disagreement, but because it was the quickest way to enable Mark to attain residency status in Tioga.

It also became apparent during these discussions that there was a fundamental misunderstanding between the Wards and Owego-Apalachin as to the alternative education setting proposed for Mark. The parents believed that their son was to be sent to a BOCES program in Harpursville, approximately 40 miles away, entailing hours of bus transportation each day. The Owego-Apalachin superintendent spoke to Mr. Ward in September 1997, however, advising him that the intended program was actually located in Maine, about 15 miles away.

Mr. Houseknecht issued a determination on September 12, 1997 denying Mark's application for admittance to Tioga as a resident student. Mr. Houseknecht determined that Mark had not overcome the presumption that his residence was the same as his parents, and that the reason for obtaining the joint custody order was to take advantage of Tioga's educational programs. This appeal ensued. Petitioner's request for preliminary relief pending a determination on the merits was denied on October 9, 1997.

Petitioner asserts that Mark now resides at her home in respondent's district, and seeks a determination that Mark is a resident and is permitted to attend Tioga Central High School tuition-free. Respondent denies that Mark is a resident, and raises two affirmative defenses. First, respondent claims that the real grievance raised by petitioner is a challenge to the decision by Owego-Apalachin to place Mark in an alternative educational setting, and that respondent had no part in this decision. Respondent asserts, therefore, that the proper respondent is Owego-Apalachin. Second, respondent contends that petitioner lacks standing to maintain this appeal, as she is not a parent and is not aggrieved by respondent's decision.

I will address respondent's procedural arguments first. I do not agree that Owego-Apalachin's proposed alternative education program is the determination at issue in the petition. Although the genesis of the dispute concerning residency may have been the Wards and petitioner's objection to the alternative educational setting proposed by Owego-Apalachin, the sole decision being challenged in this appeal is respondent's determination that Mark is not a resident of Tioga. Respondent is unquestionably the appropriate party to respond to an appeal of that determination (Education Law "3202[1]; 8 NYCRR "100.2[y]).

I also find that petitioner has standing to bring this appeal. An individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that she or he has suffered personal damage or injury to her or his civil, personal or property rights (Appeal of Bocek, 37 Ed Dept Rep 130; Appeal of Craft, et al., 36 Ed Dept Rep 314). In this case, petitioner is a resident of respondent's school district. As such, a child residing in her household for whom the presumption of parental residence has been rebutted may attend district schools tuition-free. Petitioner alleges that respondent has abrogated that right, and I therefore find that petitioner may bring an appeal to challenge respondent's action (Appeal of Bocek, supra).

Turning now to the merits, 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 Rivkin, 37 Ed Dept Rep 370; Appeal of Simond, 36 id. 117; Appeal of Keenan, 36 id. 6). For purposes of Education Law "3202, a person can have only one legal residence (Appeal of Britton, 33 Ed Dept Rep 198; Appeal of Wadas, 21 id. 577).

A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 77 NY2d 552, 558-59, 569 NYS2d 353 [1991]; Appeal of Rivkin, supra; Appeal of Keenan, supra), but this presumption may be rebutted (Catlin v. Sobol, supra; Appeal of Murphy, 37 Ed Dept Rep 162; Appeal of Simond, 36 id. 117; Appeal of McMullan, 29 id. 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 Bocek, supra; Appeal of Murphy, supra; Appeal of Garretson, 31 Ed Dept Rep 542). 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 Bocek, supra; Appeal of Murphy, supra; Appeal of Aquila, 31 Ed Dept Rep 93; Appeal of Delgado, 24 id. 279).

While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Pernell, 30 Ed Dept Rep 380), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Bocek, supra; Appeal of Garretson, supra; Appeal of Pernell, 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 a Student with a Disability, 37 Ed Dept Rep 29; Appeal of Bocek, supra; Appeal of Brutcher, 33 id. 56; Appeal of Ritter, 31 id. 24; Appeal of McMullan, supra). Moreover, the law is clear that parents may not transfer custody or 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, 443 NYS2d 828 [1981]; Appeal of a Student with a Disability, supra; Appeal of O'Malley, 35 id. 550; Appeal of Opurum, 35 id. 364; Appeal of Brutcher, supra; Appeal of Pinto, 30 id. 374). Even if custody orders or letters of guardianship are issued by a court, the presumption of a child's residence with the guardian or custodian can be rebutted if it can be shown that the guardianship or transfer of custody was established merely for the purpose of circumventing a district's nonresident policy (Appeal of Gilbert, 37 Ed Dept Rep 43; Appeal of Pinto, supra).

The record before me indicates that the parents have not relinquished custody of Mark. They continue to share custody of their son, and have simply added the Crons as joint custodians. The joint custody arrangement approved by the Family Court contemplated that Mark would only spend the school days with the Crons, and would return to his parents' residence for a "visit" on weekends. The residency questionnaire was unclear as to whether the Crons were providing financial or only moral support for Mark, although Mr. Ward has stated in an affidavit that he is not providing any monetary support. However, Mark's mother supplies his health insurance. Most significantly, the Family Court petition clearly suggests that the sole reason for the addition of the Crons as joint custodians was to establish a residence in Tioga so that Mark could attend school in Tioga rather than return to Owego-Apalachin. The Crons only commenced the Family Court proceeding after the Wards' application for enrollment as a non-resident was denied. The record thus amply supports respondent's conclusion that the reason for obtaining the joint custody order was to achieve residence status in order to take advantage of the educational programs provided by respondent's school district.

Under these circumstances, I find that petitioner has not rebutted the presumption that Mark's residence remains with his parents, in the Owego-Apalachin Central School District. Accordingly, respondent's determination is sustained.