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Decision No. 14,908

Appeal of D.E., on behalf of S.B., from action of the Board of Education of the Homer Central School District regarding residency.



Russell E. Ruthig, Esq., attorney for respondent 

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Homer Central School District ("respondent") that S.B. is not a resident of the district.  The appeal must be dismissed.

Petitioner is a nurse who lives in respondent"s school district.  S.B., who is now eight years old, is the daughter of J.B. and D.B., who live in Freeville, New York, outside respondent"s district.

On December 5, 2002, petitioner and S.B."s parents entered into an agreement whereby S.B."s parents continued to have joint custody of S.B., but also to share joint custody with D.E.  The agreement provided that S.B. would live with D.E., but that her parents would continue to share in all decisions regarding S.B."s health, welfare, and education.  The agreement further provided for visitation by arrangement of the parties, and for changes or modifications to the agreement.

On December 19, 2002, the Tompkins County Family Court issued an order approving the parties" agreement.  There is no indication that respondent was given any prior notice of either the agreement or the order, or that it had any opportunity to oppose the arrangement.  It appears that S.B. has been residing with petitioner since January 2003.

The petition contains the following allegation:

The reason that [S.B.] lives with a family other than her biological parents is because her biological parents felt that they could no longer care for her with her disabilities and all of the difficulties that accompany the disability.  The [sic] decided to place her in a facility.  As her nurse, I . . . could not see her living in a facility and decided to share custody with the parents and [S.B.] would reside with me in Homer.

The petition alleges that petitioner is supporting S.B. and that no support is provided by S.B."s biological parents.  The petition further alleges that petitioner exercises control over S.B."s activities and behavior, but that "[S.B."s] biological parents have not surrendered parental control over [S.B.] (emphasis added)."  On January 17, 2003, petitioner attempted to enroll S.B. in respondent"s schools.  Respondent"s attorney conducted a hearing on February 12, 2003, and concluded that S.B. was not a resident of the district and could not attend respondent"s schools.

Although respondent made a determination of non-residency, it appears that it allowed S.B. to attend school during the pendency of this appeal, without the necessity of an application for interim relief.

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 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, 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 72, 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 legal guardian (Appeal of Donohue, 41 Ed Dept Rep 26, 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).

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 Burdi, 39 Ed Dept Rep 176, Decision No. 14,206; Appeal of Garretson, 31 id. 542, Decision No. 12,729; Appeal of Aquila, 31 id. 93, Decision No. 12,581).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding (Appeal of Burdi, supra), 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 Burdi, supra; Appeal of Garretson, 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 Donohue, supra; 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).   Parents may not transfer custody or legal guardianship of their children merely to achieve residence status for the children to take advantage of the local schools (Matter of Proios, 111 Misc 2d 252; Appeal of a Student with a Disability, supra; Appeal of O'Malley, 35 Ed Dept Rep 550, Decision No. 13,629).  Even if custody orders or letters of guardianship are issued by a court, the presumption of a child's residence with the guardian or custodian can be rebutted if it can be shown that the guardianship or transfer of custody was established merely for the purpose of circumventing a district's nonresident policy (Appeal of Gilbert, 37 Ed Dept Rep 43, Decision No. 13,798).

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 Burdi, supra; Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465), or the hardships of single parenting (Appeal of Burdi, supra; 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 Burdi, supra; Appeal of Lebron, 35 Ed Dept Rep 359, Decision No. 13,570; Appeal of McMullan, supra).

I am unable to sustain the petition in this matter based upon the record before me.  As respondent correctly points out, there has been no total, permanent transfer of custody.  Pursuant to the agreement made by petitioner and S.B."s parents, S.B."s parents continue to share "joint custody" with D.E.  The petition specifically states that "S.B."s parents have not surrendered parental control" over S.B.  In addition, the agreement provides a mechanism for making changes or modifications, indicating a lack of permanency.  I therefore must conclude that respondent"s determination that S.B. is not a district resident was not arbitrary or capricious, and must be upheld.

The parties to the agreement do not appear to be trying to take advantage of respondent"s district: indeed, they appear to be attempting to find a solution which is in the best interest of S.B.  However, the record lacks any meaningful detail about S.B."s alleged disabilities, the family circumstances of her parents (including their financial status and ability to support S.B., whether or not there are other children in the family, and whether there are any other disabilities or health concerns), S.B."s educational program prior to January 2003, and the circumstances that led S.B."s parents to decide to place her in an institutional setting.

While all parties appear to have dealt honestly and openly with each other, it is the taxpayers of respondent"s district who are being asked to finance a solution to the problems of J.B. and D.B., who have apparently never resided in this district.  In the absence of a complete transfer of custody and control, there is simply no legal basis for requiring them to do so.

I have considered the parties" other claims, and I find them without merit.