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Decision No. 14,752

Appeal of SHAMEEKA JAMES, ROSEMARIE JAMES, and MICHAEL JAMES, on behalf of JUMANNE JAMES, from action of the Board of Education of the Greenburgh Central School District No. 7 regarding residency.


Decision No. 14,752

(June 26, 2002)


Keane & Beane, P.C., attorneys for respondent, Susanna L. Mould, Esq., of counsel


MILLS, Commissioner,--Petitioners appeal the determination of the Board of Education of the Greenburgh Central School District No. 7 ("respondent") that Jumanne James is not a district resident. The appeal must be dismissed.

Petitioner Shameeka James is Jumanne's mother, and petitioners Rosemarie and Michael James are Jumanne's maternal grandparents. After receiving a report that questioned Jumanne's residency within the district, respondent's superintendent requested that petitioner Shameeka James submit information concerning her son's right to attend respondent's schools.

At a December 21, 2001 residency meeting, petitioner Shameeka James stated that she lived in her parents' White Plains home within respondent's district, and provided various documents with that address, including copies of a driver's license, automobile insurance, and car registration. Respondent subsequently initiated a follow-up investigation, including surveillance from January 3 through January 26, 2002.

By letter dated January 28, 2002, respondent's superintendent determined that Jumanne was not a district resident and that his last day of attendance would be February 4, 2002. This appeal ensued. Petitioner's request for interim relief was granted on February 22, 2002.

Petitioners assert that they have shared joint custody of Jumanne for the last three years and that they reside together with Jumanne in the White Plains residence within respondent's district. Respondent asserts that Jumanne lives with his mother outside the district and seeks reimbursement for Jumanne's tuition.

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 the 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 Mario D., 41 Ed Dept Rep ___, Decision No. 14,600; Appeal of Epps, 39 id. 778, Decision No. 14,377).

A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Mario D., supra; Appeal of Santana, 40 Ed Dept Rep 57, Decision No. 14,420; Appeal of Epps, supra). That presumption can be rebutted where it is shown that the child"s parents have relinquished total custody and control, in which case the child"s residence becomes that of the person assuming parental control (Appeal of Santana, supra). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate"s Court (Appeal of Santana, supra; Appeal of Epps, supra), it is necessary to establish that a particular location is the student"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 Santana, supra; Appeal of Rivera, 38 Ed Dept Rep 119, Decision No. 13,997; Appeal of Garretson, 31 id. 542, Decision No. 12,729).

Annexed to the petition is an agreement between the petitioners. Although the agreement indicates that the three petitioners reside together at the White Plains address and that they hold title to the premises as tenants in common, no further documentation of this ownership is provided in the record. The agreement further states that petitioners Rosemarie and Michael James will have primary physical custody of Jumanne, but that petitioner Shameeka James, who has not relinquished total custody and control of her son, will be permitted liberal and frequent visitation. However, petitioners' assertion that they reside together at the White Plains residence is inconsistent with their creation of this visitation arrangement. Moreover, the presumption that Jumanne lives with his mother is not rebutted because the agreement acknowledges that there has not been a complete transfer of custody and control.

Respondent's answer states that its superintendent began the residency investigation because Jumanne took the school bus from an address different than his registered address and told a substitute teacher that his mother picked him up there, and they drove to the "city." A surveillance report shows that on three morning observations of the White Plains residence, neither petitioner Shameeka James nor Jumanne exited the residence. The report further shows that petitioner Shameeka James was observed arriving at the White Plains residence on two evenings, but she picked up Jumanne and drove to a residence in the Bronx. On the latter occasion, she was observed leaving the Bronx residence with Jumanne the following morning at approximately 7:00 a.m. The report also indicates that petitioner Michael James told an investigator who called the White Plains residence that his daughter, petitioner Shameeka James, did not live there.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Lokkeberg, 38 id. 134, Decision No. 14,001). Although petitioner Shameeka James provided various documents indicating the White Plains address as her residence, including copies of a driver's license, automobile insurance, and car registration, petitioners have failed to overcome respondent's evidence that she resides outside the district. Furthermore, petitioners have failed to rebut the presumption that Jumanne resides with his mother. The record indicates petitioners made inconsistent statements concerning petitioner Shameeka James" residency, and the surveillance report indicates that Jumanne and his mother do not reside within respondent's district. Moreover, the purported joint custody and visitation agreement does not demonstrate a complete transfer of custody and control. Accordingly, I find that respondent's determination is neither arbitrary, capricious nor unreasonable.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission on Jumanne"s behalf should the circumstances described in the record of this appeal change (Appeal of Santoianni, 40 Ed Dept Rep 237, Decision No. 14,470; Appeal of D.F., 39 id. 106, Decision No. 14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180).

With respect to respondent"s request that petitioners pay tuition for the period of time Jumanne attended its schools while not a district resident, the Commissioner of Education does not have any statutory authority to award student tuition (Appeal of Russo, 41 Ed Dept Rep ___, Decision No. 14,599; Appeal of Marino, 40 id. 13, Decision No. 14,404; Application of Pierrelus, 37 id. 502, Decision No. 13,913).