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Decision No. 15,083

Appeal of D.K. and R.S., Jr., on behalf of A.K., from action of the Board of Education of the Maplewood-Colonie Common School District regarding residency.



(July 15, 2004)


William M. Hoblock, Esq., attorney for respondent


MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the Maplewood-Colonie Common School District ("respondent") that A.K. is not a district resident entitled to attend its schools tuition-free.  The appeal must be dismissed.

Petitioner D.K. is A.K."s mother and petitioner R.S., Jr., is A.K."s brother.  On March 24, 2004, Albany County Family Court awarded petitioners joint legal custody of A.K.  Pursuant to the court order, R.S., Jr. has primary physical custody over A.K. and her parents have "[p]arenting [t]ime with [A.K.] at times and places mutually agreed to by the parties."  A.K. is 14 years old and lives with her brother in Maplewood, within respondent"s district.  D.K. resides in the City of Watervliet, outside respondent"s district.

Respondent"s district has one school for kindergarten through eighth grade.  Apart from educating resident students on a tuition-free basis, respondent also accepts certain nonresident students selected by lottery on a tuition basis.

Upon completing eighth grade, resident students of the district have the option of attending high school, tuition- free, in either the City of Watervliet at Watervliet High School or at Shaker High School in the North Colonie Central School District pursuant to instruction contracts with each district.  In either case, the resident student"s tuition is paid for by the district.  Nonresident students who have attended the district do not have the same option.

During sixth, seventh and most of eighth grade,  A.K.  resided outside the district with her parents in Watervliet and attended respondent"s district on a tuition basis.

In April 2003, A.K. and her mother moved into the district to live with R.S., Jr. in Maplewood.  Upon completing eighth grade, A.K. chose to attend Shaker High School in North Colonie Central School District, at respondent"s expense.  D.K. moved back to her Watervliet home, and respondent asked her to provide documentation of A.K."s residency.  By letter dated March 26, 2004, D.K. was informed that A.K. was not entitled to attend Shaker High School tuition-free and was advised to register A.K. at Watervliet High School.  Petitioners commenced this appeal on April 9, 2004.  Their request for interim relief was granted on April 20, 2004.

Petitioners claim that A.K. is a resident of respondent"s district because she lives with her brother in Maplewood.  They contend that Albany County Family Court awarded physical custody of A.K. to her brother on March 24, 2004 because it was in her best interest to finish out the school year at Shaker High School.

Respondent contends that A.K. is not a district resident because she lives with her parents on weekends in Watervliet and the only reason joint custody was arranged with R.S., Jr. was to take advantage of the schools of the district.

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 Humphrey, 43 Ed Dept Rep ___, Decision No. 14,940; Appeal of Thomas, 41 id. 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, Decision No. 14,603).  A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of Humphrey, supra; Appeal of Thomas, supra; Appeal of Santana, 40 Ed Dept Rep 57, Decision No. 14,420).  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 Juarez, 39 id. 184, Decision No. 14,208).  A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of A.F., 41 Ed Dept Rep 115, Decision No. 14,633; Appeal of Karmin, 41 id. 72, Decision No. 14,618).


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 Gratton, 43 Ed Dept Rep ___, Decision No. 14,922; Appeal of Pierre, 40 id. 538, Decision No. 14,551; Appeal of Mendoza, 39 id. 74, Decision No. 14,178).  Applications by parents to transfer custody or legal guardianship of their children merely to achieve residence status for the children to take advantage of the local schools should not be granted (Matter of Proios, 111 Misc. 2d 252; Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005).  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 Cron, supra; Appeal of Gilbert, 37 Ed Dept Rep 43, Decision No. 13,798; Appeal of Pinto, 30 id. 374, Decision No. 12,499).

The record before me indicates that the parents have not relinquished custody of A.K.  They continue to share custody of their daughter and have simply added R.S., Jr. as joint custodian.  The joint custody order was arranged  so that A.K. would spend school days with her brother and would return to her parents" residence for a "visit" on weekends.  The Family Court petition clearly suggests that the sole reason for the addition of R.S., Jr. as joint custodian was to establish a residence in Maplewood so that A.K. could finish the school year at Shaker High School.  Petitioners only commenced the Family Court proceeding after respondent determined that A.K. was a non-resident.  The record thus amply supports respondent"s conclusion that the reason for obtaining the joint custody order was to achieve residence status in order to take advantage of the educational programs provided by respondent"s school district.

Under these circumstances, I find that petitioners have not rebutted the presumption that A.K."s residence remains with her parents, in the City School District of the City of Watervliet.  Accordingly, I find no basis to disturb respondent"s determination that A.K. is not a district resident.