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Decision No. 14,093

Appeal of SHELIA BYRD, on behalf of Diane Byrd, from action of the Board of Education of the City School District of the City of Saratoga Springs regarding residency.

Decision 14,093

(March 19, 1999)

Whiteman Osterman & Hanna, attorneys for respondent, Beth

A. Bourassa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Saratoga Springs ("respondent") that her granddaughter, Diane Byrd, is not a resident of the district. The appeal must be dismissed.

Diane's mother resides in the City of Schenectady and Diane attended school in the Schenectady City School District until November 15, 1998, when she began living with petitioner. Thereafter, petitioner applied to have the child admitted as a student in respondent's district. By letter dated November 24, 1998, respondent's central registrar informed petitioner of her determination that her granddaughter is not a resident of the district based upon her finding that the evidence presented did not establish a valid and total transfer of custody of the child to petitioner.

Petitioner commenced this appeal by service of a copy of her petition on respondent on December 3, 1998. By letter dated December 14, 1998, I denied petitioner's request for a stay pending a resolution of this appeal.

Petitioner alleges that she will have "full legal custody" of her granddaughter, that she will be providing for the child's food, clothing and shelter, that she exercises control over the child's activities and behavior and that the child's mother has surrendered parental control over the child to petitioner. Petitioner requests a determination that her granddaughter is a resident of respondent's district and entitled to attend the schools therein on a tuition-free basis.

Respondent contends that Diane Byrd is not entitled to attend its schools as a resident on a tuition-free basis. Respondent alleges that petitioner has failed to rebut the presumption that the child resides with her mother in the Schenectady City School District, and that the sole reason for her placement with petitioner is to take advantage of the schools of respondent's district. Respondent also alleges that the copy of the petition served on it did not contain any of the referenced exhibits and contends that such exhibits should be disregarded.

With respect to the exhibits, the original petition filed with the State Education Department includes three exhibits. Exhibit A is a copy of a Saratoga County Family Court petition for custody/visitation relating to the child. Exhibit B is a copy of the November 24, 1998 letter from respondent's central registrar to petitioner stating her determination that her granddaughter is not a resident of respondent's district. Exhibits A and B of the petition are identical to Exhibits A and B, respectively, of the affidavit of the central registrar submitted by respondent in response to petitioner's application for a stay. Accordingly, since respondent possesses copies of such exhibits, and was able to address issues relating to the exhibits in its responsive materials, I decline to exclude their consideration in this appeal. However, since it appears from the record that respondent was not served with a copy of petition Exhibit C, an affidavit of Diane's aunt, sworn to on December 3, 1998, and has not otherwise received notice of its contents, such exhibit will be excluded from consideration of the merits of this appeal. Nevertheless, even if I were to consider such exhibit, it would be insufficient to effect my determination with respect to the child's residency, as discussed below.

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 Dimbo, 38 Ed Dept Rep 233; Appeal of Daniels, 37 id. 557; Appeal of Simond, 36 id. 117; Appeal of Allen, 35 id. 112). It is presumed that a child resides with his or her parents or legal guardian (Appeal of Bogetti, 38 Ed Dept Rep 199; Appeal of Simond, supra; Appeal of Gwendolyn B., 32 id. 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted in a proper case (Appeal of Menci, 35 Ed Dept Rep 61; Appeal of McMullan, 29 id. 310). To rebut the presumption, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Garretson, 31 Ed Dept Rep 542). Where the facts of the situation contradict the claim of a complete transfer of custody, the presumption of residence with the student's parent is not rebutted (Appeal of Galay, et al., 37 Ed Dept Rep 128; Appeal of Simond, supra, at p. 121). 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 Cron, 38 Ed Dept Rep 149; Appeal of a Student with a Disability, 37 id. 29; Appeal of Brutcher, 33 id. 56; Appeal of Ritter, 31 id. 24).

Upon my review of the record, I find that there has been no total, permanent transfer of custody. Petitioner alleges that her granddaughter is living with her because of difficulties between the child and her mother relating to disciplinary and behavioral matters. However, there is evidence in the record that contradicts the assertion that a total, permanent transfer of custody of the child to petitioner has occurred.

The Family Court petition for custody/visitation requests "joint custody of the child with physical custody belonging to the petitioner until the child graduates from high school." In addition, the petition requests a temporary order of custody. The affidavit of respondent's central registrar states that she received a telephone call from petitioner on November 17, 1998, who indicated that Diane was coming to live with her, and that the child's mother and brother would continue to reside in Schenectady. The affidavit further states that shortly after this phone call, the central registrar received a call from the child's mother, who stated that she and Diane would be living with petitioner five days a week, and that her sons would be living in Schenectady with their father. Furthermore, the affidavit states that petitioner had previously stated that Diane was having difficulty in the Schenectady schools, rather than difficulties at the child's home, and that the transfer of custody was being made because the child "in the past did not have any problems with school or environment when she resided in Saratoga." The Family Court petition contains a similar statement by petitioner. These facts suggest that the purpose of placing the child with petitioner is to take advantage of the schools of respondent's district, and that the "transfer" of custody is not total and permanent.

The record before me provides no basis to find that respondent acted arbitrarily in determining that Diane Byrd is not a resident of the district.