Decision No. 14,639

(August 31, 2001)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Altmar-Parish-Williamstown Central School District ("respondent") that B.R., a 14-year-old student, is not a district resident. Petitioner, G.B., is a resident of respondent's school district and is B.R.'s uncle. The appeal must be dismissed.

On or about January 29, 2001, B.R.'s mother, C.B., sought to register B.R. to attend school in respondent's district. On that day, C.B. submitted a notarized statement to the district indicating in pertinent part:

C.B. also provided the district with a check in the amount of $1,217.00 as a tuition payment for the registration of her son as a non-resident student. C.B. subsequently stopped payment on that check.

On March 8, 2001, respondent's superintendent sent a letter to petitioner and his wife stating that the tuition check had not been honored by the bank as a result of C.B."s stop payment request. The letter stated that C.B. "seemed to think that because [B.R.] has a special education label, she did not have to pay for his tuition." The letter advised C.B. that she was in error and all non-resident students must pay tuition for attendance in the district's schools. The letter further indicated that if B.R.'s tuition were not paid by March 13, 2001, B.R. would be excluded from respondent's school on that date. The tuition was not paid, and B.R was excluded from instruction on March 13, 2001.

On March 26, 2001, respondent considered petitioner's application for resident status for B.R. In connection with this application, petitioner and his wife submitted a "Statement of a . . . Resident Applying for Tuition-Free Attendance," and C.B. submitted the "Model Parent Affidavit" to respondent. According to respondent, petitioner was advised of the procedure to obtain temporary guardianship over B.R. and petitioner represented at the time of the board meeting that he would take steps to obtain such guardianship.

By letter dated March 28, 2001, respondent"s superintendent advised petitioner that, based upon the documentation provided to respondent, B.R. did not qualify for resident tuition-free instruction, but that petitioner may apply for temporary guardianship through the Family Court, and until temporary guardianship was granted, the school district would provide tutoring for B.R. He also stated that when the court granted temporary guardianship, B.R. would be allowed to enter school as a resident student. On March 29, 2001, respondent began providing B.R. with two hours of tutoring instruction per day.

Petitioner did not seek an order of temporary guardianship from the Family Court. In a letter dated April 16, 2001, respondent's superintendent advised petitioner that because a temporary guardianship order from the Family Court had not been obtained by petitioner, respondent was again concluding that B.R. was not a district resident and that tutoring services would be discontinued. This appeal ensued.

Petitioner requested interim relief pending a determination on the merits. Subsequently, respondent agreed to permit B.R. to attend its schools during the pendency of the appeal. As a result, petitioner withdrew his request for interim relief.

Petitioner contends that C.B. has surrendered full custody and control of B.R. to him and his wife and that B.R. is a resident of respondent"s district, entitled to tuition-free attendance in respondent's schools. Petitioner contends that respondent's decision to deny B.R. admission to its schools as a resident tuition-free student is arbitrary and capricious. Respondent contends that petitioner has failed to rebut the presumption that B.R. resides with his mother and that its determination that petitioner was not a district resident is both rational and reasonable.

Education Law "3202(1) provides, in pertinent part:

The purpose of the 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 Karmin, 41 Ed Dept Rep ____, Decision No. 14,618; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Karmin, supra; Appeal of Epps, supra; Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014). This presumption may be rebutted (Appeal of Epps, supra; Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total transfer of custody and control to someone residing within the district (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Rosati, 38 id. 216, Decision No. 14,018). Where the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Karmin, supra; Appeal of Epps, supra; Appeal of Brown, 38 Ed Dept Rep 159, Decision No. 14,007). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Pernell, 30 Ed Dept Rep 380, Decision No. 12,502; Appeal of Tunstall, 27 id. 144, Decision No. 11,899), 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 Garretson, 31 Ed Dept Rep 542, Decision No. 12,729; Appeal of Pernell, supra).

Where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of a Student with a Disability, 37 id. 29, Decision No. 13,796). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Menci, supra) or the hardships of single parenting (Appeal of McMullan, 29 Ed Dept Rep 310, Decision No. 12,304). In such cases, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child is not determinative in resolving the question of the child's residence (Appeal of Juarez, supra; Appeal of Lebron, 35 Ed Dept Rep 359, Decision No. 13,570).

In this case, on or about January 29, 2001, B.R.'s mother, C.B., sought registration of B.R. in respondent's schools. The fact that C.B. applied for registration, while not dispositive, suggests that she continued to exercise parental control over B.R. At that time, C.B. provided a written statement to respondent in which she admitted that her son would live with her brother and his wife in respondent"s district until such time as he returns to the St. Regis Mohawk Indian Reservation to reside with her, an indication that the arrangement was temporary. C.B. met with respondent's Director of Pupil Personnel, Judith Pratt. According to Ms. Pratt's sworn statement, C.B. conceded that she had no intention of transferring custody of B.R. to her brother and that B.R. was to return to live with her at the end of the school year. In addition, B.R.'s mother provided a tuition check to respondent's district for B.R. to attend respondent's schools as a non-resident. This evidence indicates that B.R.'s mother had not in fact given up full custody and control of her son to petitioner. The fact that she provided respondent's school district with a tuition check suggests that she believed her son to be a non-resident.

B.R.'s mother subsequently stopped payment on the tuition check. According to petitioner, the check was stopped because B.R.'s mother was informed by an unnamed individual that her son was entitled to tuition-free instruction because he resided in the district. However, there is no evidence in the record before me that petitioner or B.R.'s mother expressed this view to respondent prior to the superintendent"s notice to petitioner that B.R. would be excluded from instruction because of the nonpayment of tuition. Furthermore, as the superintendent"s letter of March 8, 2001 indicated, B.R.'s mother appeared to believe that B.R. was entitled to tuition-free instruction, not because he was a district resident, but because he was classified as a special education student.

Nearly two months after registering her son as a non-resident student, on March 26, 2001, B.R.'s mother, C.B., submitted a form "Model Parent Affidavit" to respondent, and petitioner and his wife submitted a form "Statement of a . . . Resident Applying for Tuition-Free Attendance." In her affidavit, C.B. gives the following reason for the living arrangement:

C.B. asserted that petitioner provides food, clothing, shelter and other pertinent necessities for B.R. and is responsible for his health, welfare and education.

In their statement, petitioner and his wife indicated the following reason for B.R. living with them: "Behavioral problems at home. No male figure in home. Broken home." They also indicated that they would be responsible for the expense of B.R.'s medical treatment, room and board, and clothing and other necessities. The form, provided by respondent to be filled out by petitioner and his wife, included a request for the name and address of B.R.'s father. Petitioner did not provide this information. I have a copy of the Judgment of Absolute Divorce of C.B. and B.R.'s father in the record before me. It indicates that both B.R.'s mother and father are charged with his support. In view of this provision, I believe that the requested information is germane to a determination of residency and should have been provided by petitioner to respondent. Petitioner should have fully explained to respondent the support arrangements for B.R., including whether or not B.R.'s father is providing support. Petitioner did not provide this information to respondent and does not clarify this point in the record before me.

Petitioner bears the burden of rebutting the presumption that B.R.'s residence is with his mother who resides outside respondent's district. Petitioner did not submit adequate evidence to respondent of a total transfer of custody and control to him. On these facts, petitioner has failed to rebut the presumption that B.R.'s residence is with his mother. Accordingly, I do not find respondent's determination that B.R. is not a district resident arbitrary or capricious.

THE APPEAL IS DISMISSED.

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