Appeal of MINNIE TAYLOR and CATHERINE WILSON, on behalf of ZATIQUE TAYLOR, from action of the Rockville Centre Union Free School District regarding residency.

 

Decision No. 14,930

 

(August 15, 2003)

 

The Law Offices of Frederick K. Brewington, attorneys for petitioner, Wendy Pelle-Beer, Esq., of counsel

 

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

 

CATE, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Rockville Centre Union Free School District ("respondent") that Zatique Taylor is not a district resident.  The appeal must be sustained.

Petitioners Minnie Taylor ("petitioner Taylor") and Catherine Wilson ("petitioner Wilson") are the grandmother and mother, respectively, of Zatique Taylor. Zatique"s mother resides within the Roosevelt Union Free School District.  Zatique"s grandmother has resided within respondent"s district for more than thirty years.  For the last few years, petitioner Taylor has played a significant role in caring for Zatique due to his mother"s work schedule.  Further, by order of the Nassau County Family Court dated September 4, 2002, petitioner Taylor was appointed Zatique"s guardian.  On or about September 6, 2002, petitioner Taylor registered her grandson with respondent and documented his residency in the district.  At that time, the district did not raise any question concerning the child"s residency.  However, by letter dated November 20, 2002, respondent"s assistant superintendent advised petitioner Wilson that because she did not live in the district, Zatique was not a district resident.  The letter stated "[a] child is considered a resident only when one or both of the parents reside in the school district."  The letter further advised that if the district did not hear from petitioner Wilson by November 25, 2002, Zatique would be excluded from school as of December 2, 2002.

By letter to respondent"s superintendent dated December 30, 2002, Zatique"s counsel demanded that respondent re-admit Zatique to school and provided respondent with a copy of the September 4, 2002 court order appointing petitioner Taylor as Zatique"s guardian.  By letter dated January 9, 2003, respondent"s district clerk informed Zatique"s counsel that respondent had concluded that the primary reason Zatique was living with petitioner Taylor was to take advantage of respondent"s schools and that he therefore was not a district resident.  This appeal ensued.  Petitioner"s request for interim relief was granted on January 27, 2003.

Petitioners contend that Zatique is a district resident and is therefore entitled to attend respondent"s schools tuition free.  Petitioners explain that petitioner Wilson is a single mother and for the last two years has been unable to properly care for her son.  Petitioner Wilson explains that since September 2001, she has held a job that requires her to work ten-hour days, forcing her to rely on petitioner Taylor and other relatives to care for Zatique after school and in the evening.  Petitioner Wilson explains that her work schedule often prevented her from picking up Zatique from his grandmother"s house until late at night, which interfered with Zatique"s bedtime.  Petitioner explains that because this arrangement was "taking its toll" on Zatique, "[a] joint family decision was reached to seek a Court Order so that [petitioner Taylor] would be able to legally make all decisions regarding Zatique"s well-being and to provide the care that Zatique needed."  In addition to her job responsibilities, petitioner Wilson began attending nursing school at night in September 2002, making it even more difficult for her to care for her son.

Respondent contends that Zatique"s mother transferred guardianship to Zatique"s grandmother to enable Zatique to take advantage of respondent"s schools and that Zatique"s mother has not permanently relinquished control of the child to his grandmother.  To support its contention, respondent submits a statement from respondent"s assistant superintendent that during a phone conversation, petitioner Taylor told her that Zatique was living with her because "his mother works during the day and goes to school in the evening" and because Zatique"s mother and grandmother wanted Zatique to attend a "better school district."  Respondent also submits evidence that during a conference with Zatique"s teacher and the principal, petitioner Wilson stated that Zatique was enrolled in respondent"s district because of "its excellence"; that Zatique would be living with his grandmother; and that petitioner Wilson was working and enrolled in school.

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 to students whose parents or legal guardians reside within the district (Appeal of Burnett, 42 Ed Dept Rep ___, Decision No. 14,825; Appeal of J.M., 42 id.   , Decision No. 14,783). Residency for purposes of Education Law "3202 is established based upon two factors: physical presence and an intent to reside in the district (Appeal of Burnett, supra).  A child"s residence is presumed to be that of his or her parent or legal guardians (Appeal of Washington, 42 Ed Dept Rep ___, Decision No. 14,820; Appeal of Giminez, 42 id.    , Decision No. 14,812).  This presumption may be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of M.S., 42 Ed Dept Rep ___, Decision No. 14,767). Moreover, where the sole reason that 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 T.B. and N.B., 42 Ed Dept Rep ___, Decision No. 14,803; Appeal of Maxwell, 42 id.    , Decision No. 14,799).

However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Donohue, 41 Ed Dept Rep 26, Decision No. 14,601; Appeal of Juarez, 39 id. 184, Decision No. 14,208; Appeal of Menci, 35 id. 61, Decision No. 13,465) 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).

Based on the record before me, I find that petitioners have rebutted the presumption that Zatique resides with his mother.  The record reflects that by order of the Family Court dated September 4, 2002, petitioner Taylor was appointed as Zatique"s guardian.  Petitioners have demonstrated that they sought the custody transfer to enable Zatique"s grandmother to provide Zatique with a stable and nurturing home, which petitioner Wilson had been unable to do because of her long work hours and enrollment in nursing school.  In addition, petitioner Taylor has assumed full financial responsibility for Zatique"s needs.  While petitioners may have indeed expressed their desire to have Zatique attend respondent"s schools, petitioners have established that the change of guardianship was independently motivated by petitioner Wilson"s inability to properly care for her son.  Under these circumstances, the fact that petitioner Wilson continues to maintain a relationship with her son and has attended school conferences is neither surprising, nor inconsistent with petitioners" claim that the child resides with his grandmother (see, Appeal of Donohue, supra; Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).  Nor does the fact that petitioner Wilson states that by obtaining a practical nurse license she hopes to "create opportunities for [her] son" establish that custody has not been permanently transferred (see, Appeal of Juarez, supra).

I note that in her November 20, 2002 letter to Zatique"s mother, respondent"s assistant superintendent incorrectly stated that "[a] child is considered a resident only when one or both of the parents reside in the school district."  As this appeal demonstrates, there are circumstances where a child may reside in a school district, even though one or both parents do not.  It is also unclear why the assistant superintendent"s letter mentions the cost of educating students in regular and special education.   Accordingly, respondent should review its policies to ensure that future determinations properly state the law (see, Appeal of Taylor, 43 Ed Dept Rep    , Decision No. 14,897).

In light of this disposition, I decline to address the parties" remaining contentions.

 

THE APPEAL IS SUSTAINED.

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