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Decision No. 15,457

Appeal of PRINCE R. COKE and GLORIA COKE, on behalf of their granddaughter DEVONA, from action of the Board of Education of the Elmsford Union Free School District regarding residency.


Decision No. 15,457


(August 25, 2006)


Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Elmsford Union Free School District ("respondent") that their granddaughter, Devona, is not a district resident.  This appeal must be dismissed.

Petitioners are the grandparents of Devona and reside in respondent's district.  On August 11, 2005, Devona made a request for admission to respondent's school district.  That request was denied by respondent on August 24, 2005.  This appeal ensued.  The district agreed to allow Devona to attend its schools during the pendency of this appeal.

Petitioners claim that Devona has resided with them in respondent’s district since June 2002 and that consequently, Devona is a resident of the district entitled to attend its schools without payment of tuition.  Respondent maintains that petitioners have failed to rebut the presumption that Devona resides with her father outside of the district.  Respondent also claims that the appeal should be dismissed because petitioners failed to properly verify their petition within a time period prescribed by my Office of Counsel.

     I will first address the procedural issue raised by respondent.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nocerino, 40 Ed Dept Rep 244, Decision No. 14,472; Appeal of Shabazz, 38 id. 481, Decision No. 14,076).

The original petition in this appeal was defective in that it was not verified by at least one of the petitioners.  Petitioners eventually served and filed a properly verified petition after this defect was discovered by my Office of Counsel.  I have repeatedly held that where, as here, petitioners are proceeding without representation by counsel, a liberal interpretation of the rules is appropriate, particularly when there is no evidence of prejudice to the opposing party (Appeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Christe, 40 id. 412, Decision No. 14,514).  In this case, the defect was cured and respondent does not plead any prejudice resulting from the late submission of petitioners’ verification, nor do I find any such prejudice (Appeal of P.R. and C.R., 41 Ed Dept Rep 48, Decision No. 14,611; Appeal of Christe, 40 id. 412, Decision No. 14,514).  Accordingly, I decline to dismiss the appeal on this procedural basis.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  "Residence" for purposes of Education Law �3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

     The presumption that a child resides with his or her parents or legal guardians can 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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

     Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (seeCatlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Nelson, 44 Ed Dept Rep 20, Decision No. 15,082).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

     Petitioners state that Devona's father lives in a nearby community outside of respondent’s district.  They state that Devona is not living with her father because he holds three jobs, and that Devona stays with her father every other weekend and sees him every day for about 30 minutes.  Petitioners further admit that Devona's father has not surrendered parental control to them, and that he continues to support Devona with food, shelter and clothing.  Under these circumstances, petitioners have failed to rebut the presumption that Devona's residence is with her father outside of respondent’s district.

     Based on the record before me, I find that respondent's determination that Devona is not a district resident was neither arbitrary nor capricious.