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Decision No. 15,059

Appeal of DARREN and KAREN WINGERT, on behalf of their son BRADLEY DAVID WINGERT, from action of the Board of Education of the City School District of the City of North Tonawanda regarding residency.


Decision No. 15,059 

(June 4, 2004)


David Michael Heim, Esq., attorney for petitioners


Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of North Tonawanda ("respondent") that their son, Bradley, is not a district resident.  The appeal must be dismissed.

Prior to October 2002, petitioners owned a home within respondent's district.  In October 2002, petitioners sold their home and moved into a residence owned by Bradley's grandfather and located within the district.  In August 2003, petitioners moved to a residence located in another school district, however, Bradley continued to reside with his grandfather.  Petitioners acknowledge that Bradley stayed with his grandfather for the specific purpose of attending schools within respondent's district.

By letter dated October 7, 2003, respondent's superintendent notified petitioners that the district had received information that Bradley may not be a district resident, and advised them that they had until October 17, 2003 to submit information concerning Bradley"s right to attend school.  By letter dated October 17, 2003, the superintendent"s designee notified petitioners of her determination that Bradley is not a district resident and would be excluded from attendance on October 31, 2003.    This appeal ensued.

     Respondent contends that its residency determination is proper and that the appeal must be dismissed as untimely.

Section 275.16 of the Commissioner"s regulations requires that an appeal be initiated within 30 days of the making of the decision or the performance of the act complained of.  The Commissioner, in his sole discretion, may excuse the failure to commence an appeal within the time specified for good cause shown (Id.).  The record indicates that a proper petition complying with the Commissioner's regulations was not served until December 11, 2003 " beyond the 30-day time period.  Except for unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of D.C., 41 Ed Dept Rep 277, Decision No. 14,684; Appeal of Vigliotta, 40 id. 344, Decision No. 14,493). Petitioners do not provide any explanation for their failure to properly commence an appeal within the required 30-day time period, and they fail to offer any evidence of unusual circumstances to excuse their delay. Accordingly, the appeal must be dismissed as untimely.

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 Curran, 42 Ed Dept Rep 49, Decision No. 14,772; Appeal of Brown, 42 id. 17, Decision No. 14,760; Appeal of L.W., 41 id. 372, Decision No. 14,717).  A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Curran, supra; Appeal of James, 41 Ed Dept Rep 487, Decision No. 14,752).  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 Maxwell, 42 Ed Dept Rep 134, Decision No. 14,799; Appeal of Donohue, 41 id. 26, Decision No, 14,601; Appeal of Santana, 40 id. 57, Decision No. 14,420).  In an appeal to the Commissioner, petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Vazquez, 42 Ed Dept Rep 245, Decision No. 14,841).

Petitioners allege that Bradley"s grandfather is his guardian.  Respondent contends that petitioners have failed to provide a court order of legal guardianship.  While it is not necessary to establish a transfer of custody and control through a formal guardianship proceeding, it is necessary to establish that a particular location is a child's permanent residence, and the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Rivers, 42 Ed Dept Rep 86, Decision No. 14,784).  Other than a bare allegation of guardianship, petitioners have failed to establish that full authority and responsibility over Bradley's support and custody has been transferred from petitioners to his grandfather.  

Moreover, where the sole reason the child is residing with someone other than the parents is to take advantage of the schools of the district, the child has not established residence (Appeal of Y.R., 42 Ed Dept Rep 376, Decision No. 14,886; Appeal of Hutchinson, 42 id. 310, Decision No. 14,865; Appeal of Vazquez, supra).  Petitioners acknowledge that Bradley continued residing with his grandfather for the specific purpose of attending schools within respondent's district.  The record does not indicate that Bradley resides with his grandfather for any other reason. 

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Vazquez, supra).

On the record before me, I cannot find that respondent's residency determination is arbitrary or capricious.