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Decision No. 14,408

Appeal of CHARLOTTE LAPIDUS, on behalf of REBECCA LAPIDUS, from action of the Board of Education of the Bellmore-Merrick Central High School District regarding residency.

Decision No. 14,408

(July 21, 2000)

Frank & Breslow, P.C., attorneys for petitioner, Saul D. Zabell, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bellmore-Merrick Central High School District ("respondent") that her granddaughter, Rebecca Lapidus, is not a district resident. The appeal must be sustained.

Petitioner resides within respondent's district. In August 1999, she inquired about enrolling Rebecca in respondent's W.C. Mepham High School. On August 23, 1999, Rebecca's father, Larry Lapidus, who resides with Rebecca's mother in Cape May Court House, New Jersey, completed the district's "parent affidavit for residence determination" in which he stated that Rebecca wants to attend school in respondent's district because she was depressed and unhappy with her current living situation with her parents. He relinquished custody and control of Rebecca to petitioner, but also stated that Rebecca would spend holidays and summer vacations with him and his wife in New Jersey. He stated further that petitioner would make all decisions pertaining to Rebecca's health, welfare and education. Petitioner similarly submitted a "custodial affidavit" in which she stated that the reason for the change in custody is that Rebecca "wants to attend school here" and will reside with her until high school graduation.

By letter dated September 2, 1999, Deputy Superintendent Thomas Caramore denied Rebecca's admission to the district because both petitioner's custodial affidavit and Mr. Lapidus' parental affidavit indicated that the primary purpose for the change in guardianship was to enable Rebecca to attend school in the district. Dr. Caramore stated that Mr. Lapidus orally represented to him that Rebecca was an excellent student who received extremely high grades at her current school and denied that Rebecca was experiencing difficulties requiring counseling or similar school intervention. This appeal ensued. Petitioner's request for interim relief was granted on October 8, 1999.

Petitioner asserts that Rebecca has been residing with her since August 20, 1999 and that she has full custody of her. Petitioner requests a determination that her granddaughter is a resident of respondent's district and entitled to attend its schools on a tuition-free basis.

Respondent asserts that the sole reason Rebecca is living with petitioner is to take advantage of the schools of the district and thus Rebecca is not entitled to attend its schools as a resident on a tuition-free basis.

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 only to district residents (Appeal of Epps, 39 Ed Dept Rep ___, Decision No. 14,377; Appeal of Rosati, 38 id. 216, Decision No. 14,018; Appeal of Rivera 38 id. 119, Decision No. 13,997).

A child's residence is presumed to be that of his or her parents (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). That presumption can be rebutted where it is shown that the parents have relinquished total custody and control, in which case the child's residence becomes that of the person assuming parental control (Appeal of Epps, supra; Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Epps, supra; Appeal of Tunstall, 27 Ed Dept Rep 144, Decision No. 11,899), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individual exercising control has full authority and responsibility with respect to the child's support and custody (Appeal of Rivera, supra; Appeal of Garretson, 31 Ed Dept Rep 542, Decision No. 12,729).

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, Decision No. 14,005; Appeal of a Student with a Disability, 37 id. 29, Decision No. 13,796). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Rivera, supra). In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Juarez, supra; Appeal of Lebron, 35 Ed Dept Rep 359, Decision No. 13,570).

In this case, Rebecca's parents both submit separate affidavits averring that they have surrendered full custody and control of Rebecca to petitioner, that petitioner provides Rebecca's food, shelter, healthcare and clothing, and that Rebecca intends to live with petitioner for at least three years until she graduates from high school. They state that Rebecca is not living with petitioner solely to take advantage of respondent's schools. Rather, they have determined that Rebecca's physical and mental well being is better served by living with petitioner. Petitioner and Rebecca's parents all aver that Rebecca suffered headaches and gastrointestinal problems linked to anxiety and depression related to her home life with her parents, but that those problems have been alleviated since Rebecca has been living with petitioner. Petitioner and Mr. Lapidus aver that their answers in their original affidavits were incomplete and contained what they thought the district expected of them, and that the affidavits in the petition are not contradictory, merely more explicatory. They point out that Dr. Caramore acknowledges that the original affidavits are incomplete.

Respondent asserts that there was no mention of Rebecca's adjustment difficulties or physical or mental illnesses in either Mr. Lapidus' or petitioner's original affidavits. Respondent claims that the parents' close physical proximity and their continued contacts militate against the fact that a meaningful and complete transfer of custody has occurred. Moreover, respondent argues that the fact that guardianship is intended to last only until high school graduation in three years demonstrates that the custody transfer is temporary.

Respondent's conclusion that Rebecca's residence has been changed solely to take advantage of respondent's educational program is unsupported and contradicted by three notarized and sworn affidavits containing a valid reason motivating Rebecca's move unrelated to respondent's educational program. Under these circumstances, I find that Rebecca's actual and only residence is with petitioner. Accordingly, respondent's determination will be set aside.


IT IS ORDERED that respondent allow Rebecca to attend school in the Bellmore-Merrick Central High School District without the payment of tuition.