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Decision No. 14,905

Appeal of G.D., on behalf of S.V. and A.V., from action of the Board of Education of the Baldwin Union Free School District regarding residency.



(July 22, 2003)


Ingerman Smith L.L.P., attorneys for respondent, Susan M.

Gibson, Esq., of counsel


MILLS, Commissioner.--Petitioner, a resident of respondent's district and the grandmother of S.V. and A.V., appeals the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that S.V. and A.V. are not district residents.  The appeal must be dismissed.

It appears from the record that the students' parents are divorced and remarried.  Their mother and stepfather reside in Florida.  Their father"s whereabouts are unknown. 

S.V. has attended respondent"s schools since October 2001.  On or about December 16, 2002, petitioner sought the admission of A.V. to respondent"s schools.  As part of her application, petitioner submitted a "new entry form," a "parent affidavit" signed by the students' mother and a "custodial affidavit" signed by petitioner.  In her affidavit, the students" mother indicated that the reason A.V. is not living with her is "Better School Districts in N.Y." and that the duration of the living arrangement is "temporary."  In the space where the parent affidavit form requests a statement confirming that the parent has relinquished custody and control of the child to the custodian, the mother stated "[t]his is a Temp. Basis as [A.V.] needs to be in school."

By separate letters both dated January 7, 2003, respondent"s director of pupil services denied petitioner"s request to register A.V. and re-register S.V. based on the director's determination that the sole reason for the proposed transfer of custody was to attend the district"s schools.  This appeal ensued.  On February 21, 2003,  petitioner"s request for interim relief was granted.

Pursuant to "276.5 of the Commissioner"s regulations, I have accepted a letter dated June 6, 2003, in which respondent's attorney states that S.V. has been withdrawn from respondent's district and has returned to Florida.  The letter includes a copy of a June 3, 2003 letter from respondent's assistant director of pupil services to the Eagle Avenue BOCES informing the BOCES that S.V.'s last day of attendance was May 21, 2003.  Respondent requests that the appeal be dismissed as moot to the extent it requests relief on behalf of S.V.  It is well settled that the Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of J.F., 42 Ed Dept Rep __, Decision No. 14,800; Appeal of Bazemore, 41 id. 449, Decision No. 14,742; Appeal of Cox, 41 id. 43, Decision No. 14,609).  Since petitioner does not dispute respondent"s assertion that S.V. has withdrawn from respondent"s district, the appeal must be dismissed as moot with respect to S.V.

The appeal must also be dismissed on the merits.  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 L.W., 41 Ed Dept Rep 372, Decision No. 14,717; Appeal of Malek, 41 id. 312, Decision No. 14,697; Appeal of Thomas, 41 id. 84, Decision No. 14,622). 

A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of L.W., supra; Appeal of Malek, supra; Appeal of Donohue, 41 Ed Dept Rep 26, Decision No. 14,601).  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 within the district (Appeal of L.W., supra; Appeal of Malek, supra; Appeal of Donohue, supra). Where the sole reason the child is residing with someone other than the parent is to take advantage of the schools in the district, the child has not established residence (Appeal of Malek, supra; Appeal of Marbury, 41 Ed Dept Rep """119, Decision No. 14,634; Appeal of Mendoza, 39 id. 74, Decision No. 14,178).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, and 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 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 an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Jones, 42 Ed Dept Rep __, Decision No. 14,797; Appeal of Razzano, 38 id. 782, Decision No. 14,142; Appeal of Plesko, 37 id. 238, Decision No. 13,850).     Although petitioner alleges in a conclusory manner that S.V. and A.V. "have a difficult time with the stepparents, and it has made it necessary for them to move to New York," there is no mention of such conflict in the initial entry forms and affidavits submitted to the district in connection with the students' enrollment.  To the contrary, it appears from these documents that the students were temporarily placed with petitioner in order to attend respondent's schools.  Furthermore, petitioner has failed to establish that there has been a total relinquishment of parental care, custody and control over the students.  The parent affidavits submitted by the students' mother indicate that the living arrangement is "temporary."  Although petitioner subsequently submitted an additional custodial affidavit and an unnotarized parent affidavit stating that the students would be permanently residing with petitioner for "personal" reasons, these documents were submitted at the time the students' residency in the district had become an issue and after petitioner had become aware of the criteria needed to establish residency.  Consequently, it would not be unreasonable to conclude, as respondent did, that these documents were created, after the fact, in an effort to establish the students' residency.   On the totality of the record before me, I cannot conclude that respondent"s determination that S.V. and A.V. are not district residents was arbitrary or capricious (Appeal of Metze, 42 Ed Dept Rep __, Decision No. 14,768).