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Decision No. 15,110

Appeal of L.H., on behalf of her granddaughter T.H. and step-granddaughter M.S., from action of the Board of Education of the Rush-Henrietta Central School District regarding residency.



(August 31, 2004)


William C. Dedes, Esq., attorney for petitioner


DesMarteau & Beale, attorneys for respondent, George DesMarteau, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Rush-Henrietta Central School District ("respondent") that her granddaughter, T.H., and step-granddaughter, M.S., are not district residents.  The appeal must be dismissed.

T.H. has attended respondent's schools since approximately September 2000, and M.S. since approximately February 2001, based upon their father's/step-father's representation that he (their "father") and their mother resided with his parents (petitioner and her husband) on Sussex Road within respondent's district.

During the 2003-2004 school year, T.H.'s school needed to contact someone to transport her from school.  Although her student file listed petitioner as the first person to  contact in such a situation, T.H. asked that her mother be contacted instead and provided the school with her mother's telephone number. After learning that this telephone number was for a residence on Appleton Street in Rochester, within the City School District of the City of Rochester, respondent's Director of Student Management & School Safety ("director") conducted a residency investigation.

During the investigation, it was discovered that the girls' father and mother were residing together at the Appleton Street residence in Rochester, outside respondent�s district.  According to the director's affidavit, the girls' father had moved to Rochester to live with their mother in February 2001, at the same time that M.S. moved into petitioner's home.  The director further learned that, on June 22, 2001, the Monroe County Family Court appointed petitioner guardian of both girls.  The director claims that, on at least two occasions, the girls' father informed him that T.H. is listed as an insured under his health care policy and that he contributes to the financial support of both girls.

By letter dated March 31, 2004, the director advised the girls' mother that he had determined that T.H. and M.S. were not district residents and would be excluded from respondent's schools after April 7, 2004. 

On April 27, 2004, the director held a residency conference with petitioner and the girls' parents. According to the director, during this conference, both parents stated that they are involved in the girls' educational programs and attend parent-teacher conferences.  They also acknowledged that the girls were frequently at their Appleton Street residence, including most weekends.  They claimed that they made the decision to give custody of M.S. to petitioner because she was experiencing some emotional problems as a result of the death of a family member in her mother's home.

By letter dated May 13, 2004, the director affirmed his March 31, 2004 decision that T.H. and M.S. were not district residents and stated that they would be excluded after May 21, 2004.  This appeal ensued.  Petitioner's request for interim relief was granted on June 7, 2004.

Petitioner contends that T.H. and M.S. are district residents because their parents have transferred guardianship and surrendered parental control to her.  To substantiate her claim, petitioner submitted her Letters of Guardianship, her 2000 school tax bill, T.H.'s Henrietta Public Library Card, M.S.'s discharge summary from Niagara Falls Medical Center and a dental appointment reminder, statements from a pediatric practice, a mailing from the Girl Scouts, a social security check and a birthday party invitation all addressed to T.H. and/or M.S. at petitioner�s address on Sussex Road.

Respondent argues that petitioner has failed to demonstrate that T.H. and M.S. are district residents because the transfer of their custody and control to petitioner was neither total nor permanent.  Respondent further argues that the primary reason they are living with petitioner is to attend respondent's schools.  Respondent contends that M.S.'s discharge summary also supports this conclusion.  

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).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding (Appeal of Burdi, 39 Ed Dept Rep 176, Decision No. 14,206), 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, 31 Ed Dept Rep 542, Decision No. 12,729).

Moreover, where the sole reason a 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).

     I agree that the purported transfer of T.H.'s and M.S.'s custody and control to petitioner is not total or permanent.  The record shows that the girls' parents contribute to their financial support, are involved with their educational programs and attend their parent-teacher conferences.  In addition, the parents acknowledged to the director that the girls frequently visit their Appleton Street residence and spend most weekends with them.  The petition also states that the girls will only live with petitioner until they graduate from high school.

In addition, there is sufficient evidence that the girls are living with petitioner for the purpose of attending respondent's schools.  M.S.'s discharge summary states that her parents felt that her main difficulty was with her school situation, that she was picked on by her peers, that she had difficulty with her teachers and peers and that her parents were discussing the possibility of moving out of Rochester so that she could attend a different school.  M.S. moved to petitioner's home shortly after her discharge.  Nowhere in the discharge summary does it state that she was experiencing emotional problems due to the death of a family member.

Also, when applying for guardianship, petitioner indicated that the girls' mother worked evenings and was unable to care for her children.  Later, the mother told the director that she no longer worked evenings and in fact, operates a in-home day care business.

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).  There is no evidence of such a bona fide reason in this case.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Wingert, 43 Ed Dept Rep ___, Decision No. 15,059; Appeal of Vazquez, 42 id. 245, Decision No. 14,841).  On the record before me, I cannot find that respondent's residency determination is arbitrary and capricious.