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Decision No. 15,615

Appeal of TONYA DUNBAR and EMANUEL ROBINSON, on behalf of REGINALD B. PRESSLEY, JR., from action of the Board of Education of the Gates Chili Central School District regarding residency.

Decision No. 15,615

(July 17, 2007)

Goldstein, Ackerhalt & Pletcher, LLP, attorneys for respondent, Jay C. Pletcher, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Gates Chili Central School District (“respondent”) that Reginald is not a district resident.  The appeal must be dismissed.

Petitioner Dunbar (“Dunbar”), Reginald’s mother, resides on Reynolds Street, Rochester, outside of respondent’s school district.  Petitioner Robinson (“Robinson”), Reginald’s grandfather, resides on Glen Oaks Drive, Rochester, in respondent’s school district.  In September of 1995, Reginald was admitted to school within respondent’s district.  On or about December 11, 2006, Dunbar was notified that Reginald was no longer considered a district resident.  Dunbar requested that Reginald be allowed to continue attending school in respondent’s district, and the request was denied.  This appeal ensued.  Petitioners’ request for interim relief was granted on January 9, 2007.

Petitioners allege that Reginald resides with his grandfather within respondent’s district and will continue to do so for three years.  Petitioners also allege that Reginald’s grandfather provides him with all food, shelter and clothing and exercises control over his activities and behavior.  Petitioners contend that Dunbar has not surrendered legal custody of Reginald to his grandfather but has sought legal counsel to do so.  Respondent denies that Robinson supports Reginald and exercises control over his activities.

Initially, I must address the memorandum of law submitted by respondent.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of a Student Suspected of Having a Disability, 45 Ed Dept Rep 483, Decision No. 15,388; Application of Jo, 45 id. 374. Decision No. 15,354; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337).  Therefore, while I have reviewed respondent’s memorandum of law, I have not considered those portions containing new allegations that are not part of the pleadings.

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).

In the petition, petitioners state that Dunbar has not surrendered parental control of Reginald to his grandfather but has sought legal counsel to initiate a proceeding to do so.  Given petitioners’ admission that there is not yet a complete or permanent transfer of custody, respondent’s determination will not be set aside.

Petitioners, however, retain the right to reapply for Reginald’s admission at any time should the circumstances presented in the record of this appeal change.  (Appeal of A Student with a Disablilty, 43 Ed Dept Rep 80, Decision No. 14,926; Appeal of Santoianni, 40 id. 237, Decision No. 14,470).