Appeal of T.C., on behalf of her grandson N.D., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

 

 

(July 22, 2003)

 

Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that her grandson, N.D., is not a district resident.  The appeal must be sustained.

During the 2001-2002 school year, N.D. lived with his parents and attended school in respondent"s district.  In March 2002 respondent suspected that N.D. and his parents were no longer living in the district.  They had, in fact, sold their home in January 2002, and purchased a home located in the Freeport Union Free School District.  Following an investigation, respondent"s director of pupil services determined that N.D. could finish the school year at respondent"s schools only by paying tuition. 

N.D."s parents subsequently enrolled him in the Freeport Union Free School District for the 2002-2003 school year.  On October 7, 2002, N.D."s mother informed staff at respondent"s high school that N.D. was having adjustment problems and that a social worker recommended that N.D. live with petitioner.  Petitioner also submitted an affidavit to respondent on October 7 stating that as of October 9, 2002, N.D. would reside with her at her home, within respondent"s district.

By letter dated October 9, 2002, respondent"s director of pupil services advised petitioner that N.D. was not entitled to attend respondent"s schools.  On October 10, 2002 petitioner filed a petition for guardianship of N.D. in Nassau County Family Court.  The petition states that, "for the best mental health of minor SW [sic] advises to live with grandmother temporarily.  All parties agree."  On October 16, 2002 the Court issued a temporary order appointing petitioner guardian of N.D.  The Court issued a final order of guardianship on December 11, 2002.

By letter dated October 15, 2002 respondent"s director of pupil services advised petitioner that N.D. was a nonresident, and therefore was not entitled to attend respondent"s schools.  Petitioner commenced this appeal and requested interim relief, which was granted on November 6, 2002.  

Petitioner contends that she is N.D."s legal guardian.  She maintains that she is responsible for his food, shelter and clothing. She alleges that she exercises control over his activities and that his parents have surrendered parental control to her.  N.D."s mother submitted an affidavit to respondent wherein she stated she had relinquished custody and control to petitioner.  Additionally, petitioner contends that N.D."s relationship with his parents is strained.  She asserts that he began living apart from his parents on October 9, 2002 because his continued residence with them was physically and emotionally unhealthy. 

Respondent contends that N.D."s legal residence is presumed to be that of his parents, in Freeport.  Respondent alleges that N.D. lived with his parents until October 9, 2002 and was enrolled in Freeport"s schools.  Additionally, respondent claims that petitioner obtained custody of N.D. only to take advantage of its schools.  Thus, respondent maintains that N.D. is not entitled to attend its schools tuition-free.

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 only to district residents (Appeal of Maxwell, 42 Ed Dept Rep ___, Decision No. 14,799; Appeal of Thomas, 41 id. 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, Decision No. 14,603). 

A child's residence is presumed to be that of his or her parents (Appeal of Maxwell, supra; Appeal of Donohue, 41 Ed Dept Rep 26, Decision No. 14,601; Appeal of Santana, 40 id. 57, Decision No. 14,420).  That presumption can be rebutted where it is shown that the parents have relinquished total custody and control, in which case the child's residence becomes that of the person assuming parental control (Appeal of Maxwell,supra;Appeal of Donohue, supra; Appeal of Santana, supra).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding (Appeal of Lapidus, 40 Ed Dept Rep 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377), it is necessary to demonstrate that a particular location is a child'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 Lapidus, supra;Appeal of Rivera, 38 Ed Dept Rep 119, Decision No. 13,997).

 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 Maxwell, supra; Appeal of Lapidus, supra; Appeal of Pierre, 40 Ed Dept Rep 538, Decision No. 14,551).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Maxwell, supra; Appeal of Donohue, supra; Appeal of Lapidus, supra).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child"s residence (Appeal of Maxwell, supra; Appeal of Donohue, supra; Appeal of Lapidus, supra).

In this case petitioner sought, and obtained, guardianship of N.D.  Petitioner swore in her petition to Family Court that she sought guardianship of N.D. for reasons concerning his mental health.  The parent affidavit submitted to the district also cited N.D."s mental health as the reason for his transfer to petitioner.  There is nothing in the record to contradict petitioner"s assertions that she is responsible for N.D."s care and support, and that relations between N.D. and his parents are strained.  Thus, it appears that there are bona fide family issues motivating the transfer of custody and that such transfer was not made solely for school purposes.  Under these circumstances, I find that N.D."s actual and only residence is with petitioner.  Accordingly, respondent"s determination must be set aside.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent allow N.D. to attend school in the Baldwin Union Free School District without payment of tuition.

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