Decision No. 13,249

(August 29, 1994)

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her grandson, Clarence, is not a resident of the Port Washington Union Free School District. The appeal must be sustained.

Petitioner, Clarence and his mother moved into the Port Washington Union Free School District in 1993, and Clarence was enrolled as a student in respondent's school in September 1993. In or about November 1993, respondent became aware that Clarence's mother had moved out of the Port Washington Union Free School District to a new address in Queens. Based upon its investigation which confirmed the relocation of Clarence's mother, respondent determined that Clarence was not a resident of the district and therefore was not entitled to attend its schools. By letter dated February 8, 1994, respondent notified petitioner that Clarence would be excluded from its schools as of February 17, 1994. On February 25, 1994, petitioner's attorney submitted affidavits from petitioner and Clarence's mother to respondent. By letter dated March 7, 1994, respondent's superintendent notified petitioner that submission of the affidavits did not change respondent's decision in this matter. Petitioner commenced this appeal on April 5, 1994. On April 19, 1994, I issued an interim order directing respondent to admit Clarence to the schools of the district pending a final determination of this appeal.

Respondent contends this appeal should be dismissed as untimely pursuant to 8 NYCRR 275.16. That section provides that an appeal to the Commissioner of Education must be instituted within 30 days of the decision or act complained of. Respondent contends that the appeal is untimely because it made its initial decision on this matter on February 8, 1994. That contention, however, ignores the fact that petitioner submitted new evidence on the issue of Clarence's residency on February 25, 1994. Respondent rejected that new evidence on March 7, 1994. The commencement of this appeal on April 5, 1994 was, therefore, within 30 days of respondent's March 7 decision. Accordingly, the appeal is timely.

Turning to the merits of this appeal, a student's residence is presumed to be that of his or her parents (Catlin v. Sobol, 155 AD2d 24, rev'd on other grnds, 77 NY2d 552). However, this presumption can be rebutted by examining the totality of circumstances (Appeal of Ambris, 31 Ed Dept Rep 41). In particular, the presumption is rebutted when it is established that the child's parent(s) have surrendered custody and control over the child and that such control is being exercised by some other person(s) with whom the child lives (seeCatlin v. Sobol, supra). Although a court order awarding legal guardianship may be offered to establish a transfer of parental custody and control, it is unnecessary to establish a residence apart from one's parent, where the child's actual and only residence is with the person(s) with whom the child lives (Catlin v. Sobol, supra; Appeal of Pryor, 29 Ed Dept Rep 505; Matter of Takeall, 23 id. 475; Matter of Tiger and Talasko, 16 id. 178).

Respondent contends that Clarence does not live with petitioner but actually resides with his mother in Queens. Respondent further contends that even if Clarence does reside with petitioner, he is doing so for the sole purpose of attending its schools.

The record before me indicates that when Clarence was born -- August 26, 1986 -- his mother was only 16 years old and resided with petitioner because Clarence's mother was at that time unable to care and provide for him independently. Since Clarence's birth, his mother has given birth to two other children. The record indicates that in November 1993, Clarence's mother moved to Queens to attend vocational school. Prior to that move, petitioner and Clarence's mother considered whether Clarence should remain with petitioner or move with his mother to Queens. The record shows that they decided that Clarence should remain with petitioner because they felt his mother was still unable to adequately care for him while attending school and caring for her two younger children. Accordingly, Clarence's mother executed an affidavit transferring custody and control of Clarence to petitioner. Petitioner simultaneously executed an affidavit stating that Clarence resides with her and that she provides for all his needs.

Based on the foregoing, I conclude that petitioner has rebutted the presumption that Clarence resides with his mother and find that the record supports her claim that Clarence resides with her in Port Washington. Respondent presents no evidence to support its contention that Clarence does not reside with petitioner. While the record does indicate that Clarence spends some weekends with his mother in Queens, that fact is not dispositive. The fact that a child continues to maintain a relationship with a parent who has relinquished custody is not determinative in resolving the issue of the child's residence (Appeal of Pinto, 30 Ed Dept Rep 374; Appeal of McMullan, 29 id. 310; Matter of Morello, 9 id. 130). In the absence of compelling evidence that Clarence actually resides with his mother and in view of the statements from petitioner and Clarence's mother that he resides with petitioner, I conclude that Clarence resides in Port Washington.

Moreover, I do not conclude that the sole reason Clarence is residing with petitioner is to take advantage of the schools of the district. The record indicates that the primary reason why Clarence resides with petitioner is that his mother is currently not able to provide for him. I particularly note that the instant matter does not involve the situation where a parent seeks to change a child's residence in an attempt to have the child attend the schools of a particular district. The record indicates that Clarence has continuously resided with petitioner since his birth.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit Gregory Baker to participate in interscholastic football during the 1994-95 school year.

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