Decision No. 12,788

(August 26, 1992)

Beth Simon, Esq., Long Island Advocacy Center, attorney for petitioner

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a directive issued on January 9, 1992, by respondent's assistant superintendent, that her granddaughter, a sixth grade student, may not return to school without the written permission of her natural mother, or a court order. On February 28, 1992, I issued an interim order directing respondent to allow petitioner's granddaughter to re-enroll in the schools of the Greenport Union Free School District pending a final decision on the merits. The appeal must now be sustained.

Petitioner has resided within respondent district for the past twenty-three years. Petitioner's son, James, is the father of the student whose residency is questioned herein. The record does not indicate his place of residence. The child's mother apparently resided in the Riverhead Central School District.

Petitioner's granddaughter has lived with her almost continuously since May 20, 1985, at which time the child's mother signed a handwritten notarized document purporting to transfer temporary care and custody of her daughter to petitioner. It appears that the student has attended schools within the district through the fifth grade.

Petitioner states that in August 1991 the child's mother "decided to reassert her parental rights" and took her daughter to her home at Hampton Bay, New York, where the student enrolled in September 1991 in sixth grade in the Hampton Bay Union Free School District. The following month, mother, and child moved to Riverhead, New York, where the student attended school in the Riverhead Central School District. In November 1991, it is alleged that the student's mother was incarcerated, leaving petitioner's granddaughter alone, and that she has again been living with her grandmother since that time. Petitioner enrolled her granddaughter in the sixth grade in the Greenport Union Free School District in December 1991.

On January 9, 1992, the child's mother called the superintendent's office at Greenport and stated that the child did not have her permission to attend the Greenport schools. Based upon that assertion, the assistant superintendent wrote to petitioner that same day and advised that her granddaughter "will not be permitted to return to Greenport School unless we have written permission from her mother or by court ordered decision."

In the petition filed with me on February 11, 1992, petitioner established to my satisfaction that her granddaughter has in fact been residing with her within respondent district; that petitioner is the child's sole source of support; that petitioner has had custody and control of her, in fact; that her granddaughter had no other place of residence; and that the arrangement whereby she lived with her grandmother had not been contrived to take advantage of the services available in respondent district. It was also clear that petitioner's granddaughter had not attended school between January 9, 1992, and the date of the commencement of this appeal. The petition also indicated that petitioner was in the process of obtaining legal guardianship of her granddaughter in the Family Court, Suffolk County.

Pursuant to 8 NYCRR '276.5, I have required further information from the parties during the pendency of this appeal. I have now been provided with a copy of an order of custody issued by Hon. Joseph J. Snellenburg II of the Family Court, Suffolk County, dated and entered March 30, 1992. Pursuant to that order, petitioner was granted full legal custody of her granddaughter.

Because there is no question that petitioner's granddaughter has in fact resided within respondent district since December 1991, and there is now no issue as to her legal custody, the appeal must be sustained.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Greenport Union Free School District admit petitioner's granddaughter to the schools of the district without payment of tuition.

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