Decision No. 13,673

(August 30, 1996)

MILLS, Commissioner.--Petitioners appeal respondent's determination that Corinne and Alexander Frank are not residents of the Greece Central School District. The appeal must be dismissed.

Petitioner Vincent P. Frank is the children's grandfather and legal guardian and resides within respondent's district. Petitioner Gail A. Frank is the children's mother and resides with their father in the Rochester City School District. Corinne, age nine, has attended school within respondent's school district since September 1992. In May 1996, petitioner Vincent Frank requested the enrollment of Alexander, age five, in respondent's school district. In support of this effort Mr. Frank provided district officials with a copy of his petition to the Monroe County Family Court for letters of guardianship for Alexander. By letter dated May 17, 1996, respondent's designee informed Mr. Frank that his grandson could not be enrolled in its schools stating that "we do not accept guardianship papers solely for the purpose of taking advantage of our school district ... Alexander's parents will have to register Alex in the school district where they reside."

Respondent's designee then reviewed the district's records concerning Corinne and determined that she was originally admitted to school in the district on the basis of temporary letters of guardianship granted to Angela and Vincent Frank on August 24, 1992. Following further conversations and correspondence with petitioners, respondent's designee notified petitioners by letter dated May 29, 1996, that he had determined that neither Alexander nor Corinne were residents entitled to attend the district's schools. Corinne was permitted to finish the 1995-96 school year in respondent's district. Petitioners commenced this appeal on June 28, 1996.

Petitioners argue that the Corinne and Alexander live with their grandparents and legal guardians, Angela and Vincent Frank, within respondent's district. Petitioners have supplied letters of guardianship for Corinne dated November 4, 1992 and for Alexander dated August 6, 1996. Petitioners allege that the children have resided during the day Monday through Friday with their grandparents since they were born and that they also reside with their grandparents in the evenings and overnight on a frequent basis. Petitioners allege that it has been and remains financially unfeasible for the children's parents to provide them with proper care during the day.

Respondent contends that the children are nonresidents because the children's parents, Gail and Daniel Frank, reside within the Rochester City School District. Respondent further contends that the letters of guardianship were obtained for the purpose of allowing the parents to establish the children's residency in respondent's school district so that the children could take advantage of respondent's schools. Respondent also alleges that the arrangement with the children's grandparents is a daycare arrangement and that petitioners have admitted that the children also reside with their parents on weekends and often overnight during the week and that the children are supported in part by their parents and in part by their grandparents.

Education Law '3202(1) provides in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to district residents (Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Brutcher, 33 id. 56; Appeal of Curtin, 27 id. 446). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Reilly, 35 Ed Dept Rep 305; Appeal of Brutcher, supra; Matter of Delgado, 24 id. 279).

When a court has issued letters of guardianship to an adult residing within a given district, the ward is presumed to reside in that school district (Appeal of Opurum, 35 Ed Dept Rep 364; Appeal of Britton, 33 id. 120; Appeal of Hilare, 31 id. 84). The presumption of a ward's residence can be rebutted if, for example, it can be shown that the guardianship was established merely for the purpose of circumventing a district's nonresident policy (Appeal of Opurum, supra; Appeal of Pinto, 30 Ed Dept Rep 374).

In this case, respondent has reasonably concluded that the transfer of legal guardianship to the grandparents was accomplished, at least in part, by a desire to have the children attend respondent's schools. In his petition for the letters of guardianship for Alexander, petitioner Vincent Frank stated that he would be a suitable guardian for the child "to send him at their school district. Because the child resides at his house. The parent are both work." In addition, paragraph 11 of this petition states that the parents of the child should not be appointed guardians because "they are living outside of the petitioner school district."

On May 23, 1996, respondent's director of student services received a letter from petitioner Gail Frank in which she stated that "if Alex has to move into his grandparent's house, he will, although he has lived there a major portion of his life already." Further, Ms. Frank does not deny statements respondent attributed to her indicating that the children live both with their parents and grandparents, that she wanted the children to attend school in respondent's district, and that she has seen the Rochester City Schools and that she doesn't like them.

In addition, the letters of guardianship for Corinne were sought in August 1992, shortly before she was enrolled in respondent's school district in September of 1992; similarly the letters of guardianship for Alexander were sought in April 1996 and issued in August 1996 shortly before the start of the school year in which Alexander was sought to be enrolled.

Therefore, I conclude that the transfer of legal guardianship over Corinne and Alexander to their grandparents was sought for the primary purpose of establishing their residency in respondent's school district. As previous Commissioner's decisions have indicated, I cannot recognize residency based on guardianship entered into for that purpose (Appeal of Opurum, supra; Appeal of Pinto, supra). Absent guardianship, a child's residence is presumed to be that of his or her parents. That presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing within the district (Appeal of Gorrasi, 35 Ed Dept Rep 68; Appeal of Brutcher, 33 id. 56). In this case, petitioners admit that they share custody and control and support for Corinne and Alexander. Therefore, the presumption of residence within the parents' school district has not been rebutted. Accordingly, respondent's determination will not be set aside.

THE APPEAL IS DISMISSED.

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