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Decision No. 14,914

Appeal of E.S., on behalf of her niece S.S., from action of the Board of Education of the Eden Central School District regarding residency.



July 31, 2003


Hodgson Russ, LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel 

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

Petitioner is the legal guardian of her niece, S.S., who has attended school in respondent"s district since kindergarten and completed the fourth grade in the 2002-2003 school year.  The student"s mother, J.S., resides in Lackawanna outside respondent"s district.  J.S. previously resided with petitioner and S.S. within respondent"s district.  In November 2002, respondent"s district hired an investigator to conduct surveillance at the Lackawanna residence.  On one occasion, the investigator observed the student being driven to school from J.S."s residence.  The superintendent provided J.S. with an opportunity to submit information concerning S.S."s right to attend school within the district.  However, by letter dated February 4, 2003, he notified J.S. that he had determined that S.S. was not a district resident and would be excluded from attendance effective June 30, 2003.  This appeal ensued.

Petitioner asserts that S.S. resides with her in the district.  She acknowledges that S.S. occasionally stays overnight at her mother"s Lackawanna residence.  She contends that she became S.S."s legal guardian because of J.S."s health, which affects her ability to care for S.S.  She further contends that J.S. no longer resides with her daughter at petitioner"s residence due to J.S."s health.  Respondent contends that petitioner became S.S."s legal guardian solely to enable her to attend the district"s schools.  Respondent further argues that there has not been a complete and permanent transfer of custody and control. 

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 Y.R., 42 Ed Dept Rep ___, Decision No. 14,886; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Burdi, 39 id. 176, Decision No. 14,206).

     A child's residence is presumed to be that of his or her parents (Appeal of Hutchinson, 42 Ed Dept Rep ___, Decision No. 14,865; Appeal of Vazquez, 42 id ___, Decision No. 14,841; Appeal of L.W., 41 id. 372, Decision No. 14,717).   That presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing within the district (Appeal of Maxwell, 42 Ed Dept Rep ___, Decision No. 14,799).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child'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 Hutchinson, 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 Hutchinson, supra; Appeal of Maxwell, supra; Appeal of Lapidus, supra).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Maxwell, supra; Appeal of Lapidus, supra; Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208). 

Respondent does not dispute petitioner"s claim that she is S.S."s legal guardian.  Rather, respondent contends that the student lives with petitioner solely for the purpose of attending respondent"s schools.  Respondent relies in part upon information obtained during its investigation of S.S."s residency in 2001.  Petitioner acknowledges that J.S. agreed to leave her Lackawanna home and reestablish residency within the district in 2001.  However, she asserts that changes in J.S."s medical condition have altered the situation.  Petitioner has submitted a notarized statement from J.S. and a copy of a physician"s letter dated February 3, 2003 describing J.S."s serious medical condition and its debilitating effect on her ability to care for her daughter.  These submissions plainly contradict respondent"s conclusion that the student resides in the district solely to take advantage of respondent"s schools.  Petitioner is her niece"s legal guardian.  While it is undisputed that S.S. visits with her mother, I find her actual residence is with petitioner.  Accordingly, respondent"s determination will be set aside.          


IT IS ORDERED that respondent allow S.S. to attend school in the Eden Central School District without the payment of tuition.