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Decision No. 15,113


Appeal of C.F., on behalf of his granddaughter K.F., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.



(September 7, 2004)


Douglas E. Libby, Esq., attorney for respondent


MILLS, Commissioner.--Petitioner, a district resident, appeals the determination of the Board of Education of the Sewanhaka Central High School District (�respondent�) that his granddaughter, K.F., is not a district resident.  The appeal must be dismissed.

K.F.�s parents were divorced in October 2003.  Her mother, who resides in a neighboring district, was granted legal custody of K.F. and her brother, who resides in Florida with their father.  In January 2004, K.F.�s mother asked petitioner to let K.F. live with him because K.F. was skipping school and having discipline problems at home.  K.F. moved in with petitioner and she attended elementary school in the district. 

In April 2004, petitioner submitted a registration form for K.F. to attend the district�s Floral Park Memorial High School for the 2004-2005 school year.  By letter dated April 22, 2004, an administrative assistant to respondent�s superintendent informed petitioner that K.F. was not entitled to attend the schools of the district on the basis of �Parental Residence Out-of-District and Custody Concerns.�  By letter dated April 26, 2004, petitioner appealed that decision. 

On May 11, 2004, a residency hearing was held at which petitioner and K.F.�s mother testified.  Petitioner testified that K.F. lives with him and that the arrangement would last as long as necessary.  When asked if he was supporting K.F. financially, he replied �more or less,� but estimated that K.F.�s mother provides about 15% financial support.  He also stated that he could not claim K.F. on his 2004 income tax because her mother had legal custody.  K.F.�s mother testified that she supplied K.F. with whatever she needed when she visited on weekends, that K.F. has medical insurance through her, that she and petitioner would both make decisions regarding K.F.�s schooling, and that petitioner has physical custody of K.F.  She further stated that she �didn�t want to release custody because I�m not getting rid of my child, and so I�m not renouncing to my custody . . . to the custody that is rightfully mine.�

By letter dated June 9, 2004, the hearing officer concluded that the evidence and testimony did not establish that there had been a total and permanent transfer of care, custody and control from K.F.�s mother to petitioner, and therefore the presumption that K.F. resided with her mother outside the district had not been rebutted.  This appeal ensued.  Petitioner�s request for interim relief was denied on July 22, 2004.

Petitioner asserts that K.F. resides with him in the district and he has assumed full responsibility for her upbringing and educational needs.  Respondent claims that the appeal is untimely.  It also asserts that the hearing officer�s decision is rational and supported by the record.

I will first address the procedural issue.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR �275.16).  Respondent asserts that the appeal must be dismissed as untimely because petitioner did not properly serve the petition until July 13, 2004, 34 days after the hearing officer issued her determination on June 9, 2004.  However, there is nothing in the record to indicate when petitioner actually received the determination.  Affording the usual five days for mailing, excluding Sundays and holidays (Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419), the date of receipt would be June 14, 2004, and the appeal is thus timely.  I need not discuss, therefore, the delay caused by the initial improper service of the petition on the administrative assistant to respondent�s superintendent.

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 Sloley-Raymond, 44 Ed Dept Rep ___, Decision No. 15,085; Appeal of J.G., 43 id. ___, Decision No. 15,045; Appeal of Y.R., 42 id. 376, Decision No. 14,886). 

     A child's residence is presumed to be that of his or her parents (Appeal of J.G., supra; Appeal of T.C., 43 Ed Dept Rep ___, Decision No. 14,910; Appeal of Donohue, 41 id. 26, Decision No. 14,601).  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 134, Decision No. 14,799; Appeal of Lapidus, 40id. 21, Decision No. 14,408).  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 Maxwell, 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, 42 Ed Dept Rep 310, Decision No. 14,865; 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).

     It is undisputed that K.F. lives with petitioner within respondent�s district.  At the time of the hearing, K.F.�s mother indicated that K.F. stayed with her on weekends, and that she purchased clothes, food and necessities when K.F. visited, which petitioner estimated to be 15% of K.F.�s support.  According to the petition, however, K.F.�s relationship with her mother is �deplorable,� and the scheduled weekend visits between K.F. and her mother have deteriorated to just a few hours, with no overnights or weekend visits.  However, at the hearing, K.F.�s mother stated that she was not relinquishing custody because it was rightfully hers.

     While there may be bona fide family issues unrelated to the district�s educational program that prompted K.F.�s move, K.F.�s mother has not relinquished custody and control.  Therefore, in light of the mother�s statement, I am constrained to find that respondent�s determination was not arbitrary and capricious and it will not be set aside.

     While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of his granddaughter at any time should circumstances change (Appeal of Holder, 44 Ed Dept Rep ___, Decision No. 15,088; Appeal of Normandin, 43 id. ___, Decision No. 14,950).