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Decision No. 14,014

Appeal of JOHN BOGETTI, on behalf of ANTHONY COSTELLO, from action of the Board of Education of the Tuckahoe Union Free School District regarding residency.

Decision No. 14,014

(September 4, 1998)

Donoghue, Thomas, Auslander & Droham, attorneys for respondent, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Tuckahoe Union Free School District ("respondent") that his nephew, Anthony Costello, is not a resident of the district. The appeal must be dismissed.

Petitioner lives within respondent's school district and Anthony has attended respondent's schools since September 1996. Respondent permitted Anthony to enroll as a resident of the district based upon statements made by petitioner and Anthony's mother, Martha Zinola (petitioner's sister) that Anthony was residing with petitioner. Ms. Zinola resides near petitioner, but in another school district. After receiving information that indicated that Anthony was actually residing with his mother, respondent conducted an investigation into the matter. On April 20, 1998 respondent's superintendent conducted a residency hearing which petitioner and Ms. Zinola attended. Respondent's superintendent notified Ms. Zinola by letter dated April 21, 1998, of his determination that Anthony was not a resident of the district. This appeal ensued. On May 15, 1998, petitioner's request for interim relief pending a determination in this appeal was granted.

Petitioner contends that Anthony has lived with him since late September or early October 1996 because of family difficulties that arose after Anthony's father died. Petitioner alleges that Ms. Zinola has surrendered custody and control of Anthony to him and submits Letters of Guardianship issued by the Westchester County Surrogate's Court on March 6, 1998.

Respondent contends that Anthony is not a district resident but lives with Ms. Zinola outside the district. Respondent also requests a determination that it is entitled to collect tuition for the entire period of Anthony's attendance at its schools.

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 Kucherovsky, 37 Ed Dept Rep 241; Appeal of Cortes, 37 id. 114; Appeal of Keenan, 36 id. 6; Appeal of Brutcher, 33 id. 56). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Simond, 36 Ed Dept Rep 117; Appeal of Gwendolyn B., 32 id. 151; Appeal of Pinto, 30 id. 374). However, that presumption can be rebutted. 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 Simond, 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 a Student with a Disability, 37 Ed Dept Rep 173; Appeal of Aquila, 31 id. 93; Appeal of Garretson, supra). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of a Student with a Disability, supra; Appeal of Tunstall, 27 Ed Dept Rep 144), 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 Garretson, supra; Appeal of Pernell, 30 Ed Dept Rep 380).

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 Gilbert, 37 Ed Dept Rep 43; Appeal of Britton, 33 id. 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 Gilbert, supra; Appeal of Pinto, supra). 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, respondent states, and petitioner does not deny, that it is Ms. Zinola, not petitioner, who communicates with respondent regarding Anthony's educational matters and disciplinary referrals. Respondent also submits the report of a private investigator who observed Anthony at Ms. Zinola's residence being transported to and from school by her on three consecutive days. In addition, petitioner admits that Ms. Zinola provides substantial financial support for Anthony and that Anthony stays with her on weekends and holidays.

Although petitioner submits a guardianship order with his petition, that alone is not dispositive of Anthony's residency. As discussed above, the record before me indicates that there has not been a complete and permanent transfer of custody sufficient to rebut the claim that Anthony resides with his mother outside the district. Rather, the record indicates that petitioner continues to exercise some degree of control over Anthony. Furthermore, the date of the letters of guardianship suggests that petitioner only sought legal guardianship after respondent raised the issue of residency and thus, were sought in order to establish school district residency. Therefore, based on all the evidence before me, I cannot find that the presumption of Anthony's residence with his mother has been rebutted. Accordingly, respondent's determination that Anthony is not a district resident will not be set aside.

Finally, as to respondent's request for a determination that it is entitled to seek tuition reimbursement for the entire period of Anthony's attendance at its schools, I note that respondent has the discretion to seek payment for a nonresident enrolled in its schools (see, Bd. of Educ. of Lawrence Union Free School District v. Gaffney, 233 AD2d 357).