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Decision No. 15,653

Appeal of PAULA CRAWFORD, on behalf of her grandson QUINTIN L. CROSBY, from action of the Board of Education of the Gates Chili Central School District regarding residency.

Decision No. 15,653

(August 31, 2007)

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

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Gates Chili Central School District (“respondent”) that her grandson, Quintin L. Crosby, is not a district resident entitled to attend its schools tuition-free. The appeal must be dismissed.

In July 2005, Quintin’s father enrolled him in respondent’s school district representing that he, Quintin and petitioner resided on Rellim Boulevard within the district.  By letter dated February 5, 2007, respondent’s director of pupil services informed Quintin’s father that Quintin was not a resident entitled to attend respondent’s schools tuition-free.  On February 14, 2007, Quintin’s father applied to the Monroe County Family Court to appoint petitioner as Quintin’s guardian.[1]  This appeal ensued.  Petitioner’s request for interim relief was granted on March 9, 2007.

Petitioner contends that she is Quintin’s legal guardian and that he resides within respondent’s school district with her.  She alleges that she supports Quintin -- providing him with food, shelter and clothing and that she exercises control over his activities and behavior.  Petitioner avers that Quintin’s father surrendered custody and control and that Quintin was living with her due to his father’s incarceration.

Respondent maintains that petitioner has not rebutted the presumption that a child’s residence is with his or her parents or legal guardian, and that Quintin resides with his father outside the district.  Respondent also argues that Quintin’s father filed a petition solely to have petitioner appointed guardian so that Quintin could attend respondent’s schools.

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).

Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Based on the record before me, I find that petitioner has failed to rebut the presumption that Quintin’s residence is with his father, outside respondent’s district.  Respondent’s investigator conducted surveillance on ten days between December 20, 2006 and January 24, 2007. On eight mornings the investigator observed Quintin’s father driving him from a residence outside the district and bringing Quintin to his grandmother’s residence, where he then boarded the school bus.  Petitioner has failed to provide any additional information regarding the petition filed in family court concerning guardianship, any evidence that Quintin actually resides with her or any evidence that she has been granted custody and control.  I cannot conclude, therefore, that respondent acted arbitrarily or capriciously in determining that Quintin is not a district resident.



[1] As of this date, my Office of Counsel has received no information regarding the disposition of the guardianship application.