Appeal of BLANCHE HARDICK, on behalf of her granddaughter MALINDA MARL, from action of the Board of Education of the Pine Bush Central School District regarding residency.

 

Decision No. 14,693

(February 26, 2002)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pine Bush Central School District ("respondent") that her granddaughter, Malinda Marl, is not a district resident. The appeal must be sustained.

Petitioner resides in Walker Valley, New York, within respondent's district. In June 2001, Malinda, who was 16 years old at the time, came from Florida to visit petitioner. In August of that year, Malinda refused to return to Florida, and her father agreed to give petitioner temporary guardianship of her granddaughter. Petitioner sought to enroll Malinda in school in respondent's district, but the request was denied. Following a residency hearing on September 4, 2001, respondent"s superintendent advised petitioner of his determination that Malinda was not a district resident because the child's father had not relinquished total care, custody and control. By letter dated September 12, 2001, petitioner again requested that Malinda be admitted, but that request was also denied. This appeal ensued. Petitioner's request for interim relief was granted on October 19, 2001.

Petitioner asserts that her son's remarriage four years ago created a strain in his relationship with his daughter and made the Florida home environment difficult for Malinda. Petitioner further asserts that she agreed to take full responsibility for her granddaughter who would reside with her in New York for the foreseeable future. Respondent asserts that Malinda is not a resident of its district because her father who resides in Florida has not totally relinquished care, custody and control of his daughter.

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 this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Epps, 39 Ed Dept Rep 778, Decision No. 14,377; Appeal of Burdi, 39 id. 176, Decision No. 14,206; 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 Burdi, supra; Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). This presumption may be rebutted (Appeal of Epps, supra). 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 within the district (Appeal of Epps, supra; 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 Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of Revella, 37 id. 65, Decision No. 13,805). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Epps, supra; 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 Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of Garretson, 31 id. 542, Decision No. 12,729; Appeal of Pernell, supra).

Moreover, 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 Beska, 39 Ed Dept Rep 661, Decision No. 14,344; Appeal of Cron, supra; Appeal of a Student with a Disability, 37 Ed Dept Rep 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, 35 id. 61, Decision No. 13,465). In such case, 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). Nor is it necessarily determinative that the child continues to be covered by the parent"s health insurance where there is no indication that providing such coverage requires a financial contribution or involves control over medical care (Appeal of Burdi, supra).

I find that petitioner has rebutted the presumption of parental residence. The record indicates that family conflict in her father's Florida home motivated Malinda to reside with her grandmother. The record further indicates that Malinda's father granted temporary custody "for an indefinite period of time" and assisted in procuring the transfer of his daughter's Florida school records to respondent's district. Furthermore, petitioner indicates that she provides Malinda with food, shelter, and clothing. The fact that Malinda may remain on her father's medical insurance does not, in itself, contradict petitioner's statement that she is supporting her granddaughter. Additionally, petitioner states that she exercises control over Malinda's activities and behavior. On the record before me, it does not appear that Malinda"s father continues to exercise any care, physical custody or control of his daughter.

Upon review of all the relevant documentation herein, I find that petitioner rebutted the presumption of parental residence and established that Malinda is a resident of respondent's school district.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent admit Malinda Marl to the schools of its district without payment of tuition.

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