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Decision No. 14,799

Appeal of DONALD MAXWELL, on behalf of his grandson NOEL DAVIS, from action of the Board of Education of the Valley Stream Central High School District regarding residency.

Decision No. 14,799

(August 26, 2002)

Jonathan D. Mandell, Esq., attorney for petitioner

Guercio & Guercio, attorneys for respondent, David M. Brodsky, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Central High School District ("respondent") that his grandson, Noel Davis, is not a district resident. The appeal must be sustained.

On November 9, 2001, Noel was assaulted on the way home from school. The physical injuries sustained included lacerations and a broken nose. Following the assault, Noel stopped attending school and began receiving home tutoring three times per week. In December 2001, Noel began living with his grandparents in respondent's district, and petitioner attempted to enroll him in respondent's schools. Petitioner's December 21, 2001 affidavit submitted to the district asserts that Noel's parents permanently surrendered custody to him, and that he was assuming full responsibility for all educational and medical matters. At the time, petitioner acknowledged that Noel was covered by his mother's health insurance policy. At a meeting with the district's assistant superintendent for administration and support services and a residency consultant, petitioner indicated that it would be better for Noel to complete his education in respondent's district. On approximately January 9, 2002, respondent determined that Noel was not a district resident.

On January 25, 2002, the Family Court, Queens County, granted petitioner and his wife temporary custody of Noel. On February 7, 2002, petitioner commenced this appeal. On February 13, 2002, the district held a second residency hearing to consider the custody order that had issued in the intervening period, but the district again determined by letter dated February 15, 2002, that Noel was not a district resident. Petitioner served an amended petition on February 20, 2002, and his request for interim relief was granted on March 4, 2002. On April 5, 2002, the Family Court awarded petitioner and his wife permanent custody of their grandson.

Petitioner asserts that he supports and has custody of Noel who resides with him in respondent's district. Respondent asserts that Noel is not a resident because he is living with petitioner to take advantage of the district's educational offerings. Respondent further asserts that Noel's parents have not truly transferred custody and control for purposes of Education Law "3202 as evidenced by the continuation of coverage under his mother's health insurance policy and his mother's involvement in decisions regarding his health and welfare.

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 Thomas, 41 Ed Dept Rep ___, Decision No. 14,622; Appeal of Oliver, 41 id. ___, Decision No. 14,603; Appeal of Davis, 39 id. 181, Decision No. 14,207). For purposes of Education Law "3202(1), residence is based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Silvestro, 40 id. 259, Decision No. 14,476; Appeal of Gentile, 39 id. 23, Decision No. 14,161). A child"s residence is presumed to be that of his or her parents or guardian (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Santana, 40 id. 57, Decision No. 14,420; Appeal of Williams, 39 id. 73, Decision No. 14,177). This presumption may be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Donohue, supra; Appeal of Santana, supra; Appeal of Mendoza, 39 Ed Dept Rep 74, Decision No. 14,178).

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 Pierre, 40 Ed Dept Rep 538, Decision No. 14,551; Appeal of Cron, 38 id. 149, Decision No. 14,005). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Donohue, supra;Appeal of Lapidus, 40 Ed Dept Rep 21, Decision No. 14,408; Appeal of Juarez, 39 id. 184, Decision No. 14,208). In such cases, the mere fact that a child continues tomaintain 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 Donohue, supra; Appeal of Lapidus, supra; Appeal of Juarez, supra).

Although respondent was aware that petitioner was seeking a Family Court Order of permanent custody, it apparently failed to file any opposition in that forum. Respondent's conclusion that Noel changed his residence solely to take advantage of respondent's educational program is contradicted by the record. Noel began living with petitioner following the trauma of an assault that prevented him from attending his former school. Additionally, Noel's mother indicated that he was living with petitioner to benefit his grandmother who was otherwise alone when her husband was working at the New York City Transit Authority. These undisputed assertions constitute bona fide reasons for Noel's residency with petitioner independent of respondent's educational program. Under these circumstances, I find that Noel's actual and only residence is with petitioner. Accordingly, respondent's determination will be set aside.


IT IS ORDERED that respondent allow Noel Davis to attend school in the Valley Stream Central High School District without the payment of tuition.