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Decision No. 14,601

Appeal of MARGARET G. DONOHUE, on behalf of DANIEL J. PATRICK, from action of the Board of Education of the Galway Central School District regarding residency.

Decision No. 14,601

(July 20, 2001)

Robert E. Van Vranken, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the Galway Central School District ("respondent") that her grandson, Daniel Patrick, is not a district resident. The appeal must be sustained.

Until December 2000, Daniel lived with his mother and stepfather in the Scotia-Glenville Central School District. In January 2001, Daniel went to live with petitioner at 1500 Peaceable Street in respondent's school district. At that time, petitioner attempted to enroll Daniel in respondent's school district. Daniel's mother submitted an affidavit indicating that he had left her home due to difficulties with his stepfather. The affidavit stated that Daniel's mother relinquished custody and control to petitioner, including the right to make decisions pertaining to Daniel's health, welfare and education. The affidavit further indicated that such transfer was effective from January 5, 2000 until June 30, 2002, and that during that time Daniel was interested in going back to school to obtain his high school diploma. A letter submitted by petitioner indicated that Daniel would live with her permanently until he became self-sufficient.

By letter dated January 17, 2001, respondent's director of pupil services, designated to make residency determinations pursuant to 8 NYCRR "100.2(y), notified Daniel's mother that she had determined that Daniel was not a resident of respondent's school district and was not entitled to attend its schools tuition free. The letter indicated that, although Daniel lived with petitioner, he was still claimed as a dependent on his mother's tax forms and health insurance. In addition, his voter registration and driver's license retained his mother's address.

On January 19, 2001, petitioner reapplied for Daniel's admission to respondent's school district. Petitioner submitted an affidavit attesting that Daniel was going to live with her until such time as he became self-sufficient. It reiterated that Daniel had left home due to difficulties with his stepfather that created a hostile environment. Petitioner stated that she and Daniel's grandfather were providing Daniel with food, clothing and all other necessities. Finally, petitioner stated that she and her husband assumed full responsibility for all matters relating to Daniel's education and medical care. Petitioner also submitted a copy of Daniel's new driver's license and voter registration card indicating that his residence was 1500 Peaceable Street in respondent's school district. Daniel remained on his mother's medical insurance, apparently because of a heart-related medical condition.

By letter dated January 26, 2001, respondent's director of pupil services notified Daniel's mother that, upon review of the additional documents, she determined that parental rights had not been transferred or terminated. Consequently, she concluded that Daniel was not a resident of respondent's school district. This appeal ensued. On February 16, 2001, I issued an interim order directing respondent to admit Daniel to its school pending a determination on the merits of the appeal.

Respondent asserts that petitioner failed to establish that a permanent relinquishment of custody and control occurred sufficient to rebut the presumption that Daniel's residence continues to be that of his mother. Respondent contends, therefore, that it properly determined that Daniel was not a resident of its school 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 Epps, 39 Ed Dept Rep 778, Decision No. 14,337; Appeal of Burdi, 39 id. 176, Decision No. 14,206; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Burdi, supra; Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). 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 Epps, supra; Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Rosati, 38 id. 216, Decision No. 14,018). Where the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of Revella, 37 id. 65, Decision No. 13,805). 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, Decision No. 12,502; Appeal of Tunstall, 27 id. 144, Decision No. 11,899), 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 Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of Garretson, 31 id. 542, Decision No. 12,729; Appeal of Pernell, supra).

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 Beska, 39 Ed Dept Rep 661, Decision No. 14,344; Appeal of Cron, supra; 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 Menci, 35 id. 61, Decision No. 13,465) or the hardships of single parenting (Appeal of McMullan, 29 Ed Dept Rep 310, Decision No. 12,304). In such cases, the mere fact that a child continues to maintain a relationship with a parent who has 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). Nor is it necessarily determinative that the child continues to be covered by the parent"s health insurance where there is no indication that providing such coverage requires a financial contribution or involves control over medical care (Appeal of Burdi, supra).

Upon review of the documentation submitted by petitioner, I find that petitioner has rebutted the presumption of parental residence. Daniel's mother has relinquished custody and control of Daniel to petitioner and Daniel's grandfather, including the right to make medical and educational decisions. Petitioner indicates that she and her husband provide Daniel with food, clothing and all other necessities. There is nothing in the record contradicting those assertions. The fact that Daniel maintains a relationship with his mother does not contravene the transfer of custody and control (Appeal of Juarez, supra; Appeal of Lebron, supra). In addition, the fact that Daniel remains on his mother's medical insurance does not, on its own, contradict petitioner's statement that she supports Daniel and is responsible for making decisions relating to his health. Moreover, petitioner's indication that Daniel has a heart condition adequately explains the reason for retention on his mother's insurance. Although petitioner and Daniel express a desire for him to obtain a high school diploma, the record indicates that the existence of family difficulties independently motivated Daniel to establish residence with petitioner, rather than to take advantage of respondent's schools. Finally, the driver's license and voter registration submitted by petitioner supports her assertion that Daniel resides with her at 1500 Peaceable Street within respondent's district.

Upon review of all the relevant documentation herein, I find petitioner rebutted the presumption of parental residence and established that Daniel is a resident of respondent's school district.


IT IS ORDERED that respondent admit Daniel Patrick to the schools of its district without payment of tuition.