Decision No. 14,201

(August 25, 1999)

MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the Gilboa-Conesville Central School District ("respondent") that Robert S. Kennedy is not a district resident. The appeal must be sustained.

Petitioners are residents of respondent's district ("district") and petitioner James Young is a distant cousin of Robert's. Robert's mother is a resident of the Middleburgh Central School District ("Middleburgh") and Robert lived with her and attended Middleburgh schools until March 1999. Apparently Robert experienced difficulties in school and Middleburgh initiated a Person in Need of Supervision (PINS) petition which was pending when Robert incurred another disciplinary infraction in March 1999. Robert was placed in a foster home from March 25 to March 29, 1999. He then moved in with petitioners who sought, with the consent of Robert's mother, custody of Robert through the Schoharie County Family Court. The court granted petitioners temporary custody of Robert on April 7, 1999 and permanent custody on April 27, 1999. Petitioners also attempted to enroll Robert in respondent's schools. On April 8, 1999, respondent's superintendent notified petitioners that Robert was not a district resident. Petitioners requested a hearing which was held on April 14, 1999. The superintendent adopted the hearing officer's findings and notified petitioners, by letter dated April 28, 1999, that Robert's application to attend the district's schools had been denied. This appeal ensued.

Petitioners contend that they have full and total custody and control of Robert and that they support him financially. They argue that the transfer of custody was not done for the sole purpose of taking advantage of the district's schools.

Respondent argues that its decision was not arbitrary or capricious and contends that Robert lives with petitioners solely to take advantage of respondent's schools. Respondent also argues that petitioners lack standing to appeal its decision.

Initially, I will address the issue of standing. An individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that she or he has suffered personal damage or injury to her or his civil, personal or property rights (Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of Bocek, 37 id. 130, Decision No. 13,822; Appeal of Craft, et al., 36 Ed Dept Rep 314, Decision No. 13,734). In this case, petitioners are residents of the district. As such, a child residing in their household for whom the presumption of parental residence has been rebutted may attend district schools tuition-free. Petitioners allege that respondent has abrogated that right, and I therefore find that petitioner may bring an appeal to challenge respondent's action (Appeal of Cron, supra; Appeal of Bocek, supra).

Turning to the merits of the appeal, 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 students whose parents or legal guardians reside within the district (Appeal of Byrd, 38 Ed Dept Rep 561, Decision No. 14,093; Appeal of Revella, 37 id. 65, Decision No. 13,805; Appeal of Keenan, 36 id. 6, Decision No. 13,635). A child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 Ed Dept Rep 117, Decision No. 13,675; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). However, this presumption may be rebutted (Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465; Appeal of McMullan, 29 id. 310, Decision No. 12,304). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of Revella, supra; Appeal of Garretson, 31 Ed Dept Rep 542, Decision No. 12,729). However, when the sole reason a child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residency (Appeal of Brown, supra; Appeal of West, 36 Ed Dept Rep 76, Decision No. 13,662; Appeal of Brutcher, 33 id. 56, Decision No. 12,973). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of a Student with a Disability, 37 Ed Dept Rep 173, Decision No. 13,833; Appeal of Tunstall, 27 Ed Dept Rep 144), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of a Student with a Disability, supra; Appeal of Garretson, supra; Appeal of Pernell, 30 Ed Dept Rep 380).

Upon my review of the record, I find there has been a total, permanent transfer of custody. It appears from the record that Robert does reside with petitioners and that Robert's mother has surrendered control and custody of Robert to petitioners. Robert's mother testified that she does not provide any financial support or have insurance coverage for Robert, while petitioners testified that they would be supporting Robert and that they are seeking health insurance for him through petitioner Young's employer.

Furthermore, it does not appear that the sole reason Robert moved in with petitioners was to attend respondent's schools. Throughout the testimony at the residency hearing there were two reasons articulated for Robert's living situation. One reason is so that Robert could have a fresh start in a new school. The other reason was problems at home. Petitioner testified that Robert had "problems against his mother", there was resentment, and Robert needed a new start all the way around. Robert's mother stated that there were problems between her and Robert and he was not getting along with his siblings. Robert's mother also testified that her relationship with Robert had improved since he went to live with petitioners and that she had relinquished custody and control to petitioners. Most importantly, a social worker from Schoharie County Social Services testified that her department, which has maintained an open case on Robert and his mother, supported Robert's placement with petitioners rather than Robert being placed in a foster home. She also testified that Robert had improved and that petitioners have provided an excellent placement for him. Petitioners testified that they volunteered to have Robert live with them rather than have him placed in a foster home. Based on this evidence, it appears there was a valid reason unrelated to respondent's educational program which prompted Robert's move. Under these circumstances, I find that petitioners have rebutted the presumption that Robert lives with his mother and that respondent's determination that Robert is living with petitioners solely to take advantage of its schools is arbitrary and capricious and must be overturned.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Robert to attend school in the Gilboa-Conesville Central School District without the payment of tuition.

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