Appeal of GLENN TEIXEIRA-NISSENSOHN, on behalf of his son KYLE, from action of the Board of Education of the Middle Country Central School District regarding residency.

 

Decision No. 14,692

(February 26, 2002)

 

Guercio & Guercio, attorneys for respondent, Thomas M. Volz, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Middle Country Central School District ("respondent") that his son, Kyle, is not a district resident. The appeal must be dismissed.

Petitioner is Kyle"s father and has sole and exclusive custody of Kyle by an order of the Suffolk County Family Court dated November 5, 1999. Petitioner admits that he does not reside in respondent"s district. Petitioner alleges that he formerly lived with his mother and Kyle in respondent"s district until he moved in June 2001. Petitioner claims that Kyle remained with petitioner"s mother to prevent disruption in his life.

During September and October 2001, petitioner and petitioner"s mother attempted to enroll Kyle in respondent's schools. Respondent refused to admit Kyle and this appeal ensued. Petitioner"s request for interim relief was denied on November 21, 2001.

Petitioner seeks a determination that Kyle is a resident of respondent"s district. Respondent submits that Kyle is not a district resident and maintains that the appeal must be dismissed on the merits.

In an appeal to the Commissioner of Education pursuant to Education Law "310, a petitioner has the burden of demonstrating a clear right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Green, 40 Ed Dept Rep 278, Decision No. 14,479; Appeal of a Student with a Disability, 40 id. 121, Decision No. 14,436).

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

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of the residency 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 Mario D., 41 Ed Dept Rep , Decision No. 14,600; Appeal of Davis, 39 id. 181, Decision No. 14,207; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Mario D., supra; Appeal of a Student with a Disability, supra; Appeal of Santana, 40 Ed Dept Rep 57, Decision No. 14,420). That presumption can be rebutted where it is shown that the child"s parents have relinquished total custody and control, in which case the child"s residence becomes that of the person assuming parental control (Appeal of Smith, 40 Ed Dept Rep 126, Decision No. 14,438; Appeal of a Student with a Disability, supra; Appeal of Santana, supra). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate"s Court (Appeal of Santana, supra; Appeal of Epps, 39 Ed Dept Rep 778, Decision No. 14,377; Appeal of Tunstall, 27 id. 144, Decision No. 11,899), it is necessary to establish that a particular location is the student's permanent residence, and that the individual exercising control has full authority and responsibility with respect to the child"s support and custody (Appeal of Santana, supra; Appeal of Rivera, 38 Ed Dept Rep 119, Decision No. 13,997; Appeal of Garretson, 31 id. 542, Decision No. 12,729).

In this case, petitioner has failed to demonstrate that respondent acted arbitrarily or capriciously in determining that Kyle is not a district resident. First, petitioner admits that he resides outside of respondent"s district. Second, petitioner has not submitted any evidence that indicates that he has granted Kyle"s grandmother full authority and responsibility with respect to Kyle"s support and custody. Instead, petitioner, in a letter dated October 1, 2001, merely granted limited guardianship to Kyle's grandmother and states that "Discussions concerning the welfare, residence or financial status of my son or my custodial rights of my son may not be altered without my written consent." Petitioner further states in the letter that the grandmother"s decision-making ability is limited to "life threatening and emergency medical decisions and educational requirements." Third, petitioner"s letter also states that Kyle will live with his grandmother only until the end of the kindergarten semester or to the end of petitioner"s work project. These statements directly conflict with petitioner's position as articulated in his petition, dated just four days later, that Kyle would remain with his grandmother indefinitely. Therefore, since there is no evidence in the record that the transfer of custody was complete or permanent, respondent"s determination will not be set aside (Appeal of Santana, supra; Appeal of Noble-Silverberg, 38 Ed Dept Rep 213, Decision No. 14,017).

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission on Kyle"s behalf at any time should the circumstances presented in the record of this appeal change (Appeal of Santoianni, 40 Ed Dept Rep 237, Decision No. 14,470; Appeal of D.F., 39 id. 106, Decision No. 14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180).

 

THE APPEAL IS DISMISSED.

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