Appeal of I.M., on behalf of B.J., from action of the Board of Education of the Pine Bush Central School District regarding residency.

 

 

(June 18, 2004)

 

Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, John M. Donoghue, Esq., of counsel

 

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

Petitioner resides in respondent"s school district.  In May 2003, B.J."s father, who lives outside of the district, sent her to live with petitioner.  At the time, the whereabouts of B.J."s mother were unknown and her father had custody.

When petitioner attempted to enroll B.J. in respondent"s schools, she was asked to present information regarding B.J."s residency.  B.J."s father submitted an affidavit stating that he was the custodial parent, but that B.J. was living with petitioner because she was "not going to school and not listening to [him]."  B.J."s father stated that he would provide her with clothes and "other things," as well as health insurance coverage until the end of May 2003.

By letter dated May 12, 2003, respondent"s designee for residency determinations notified B.J."s father that, based on the information presented, she determined that he had not relinquished total care, custody and control of his daughter and that, consequently, B.J. was not a district resident.

On July 2, 2003, the Family Court, Orange County, granted petitioner temporary custody of B.J.  On August 13, 2003, B.J."s mother was incarcerated.  On August 26, 2003, petitioner and B.J."s father again submitted affidavits to respondent"s designee regarding B.J."s residency, including a copy of the temporary custody award.  Petitioner"s affidavit indicated that she assumed "full responsibility for all matters relating to the child"s education and medical care."

In his affidavit, B.J."s father stated that he had "signed custody over to" petitioner, but that he still provided "temporary" health insurance coverage for B.J. and provided her with clothes and money.  Both affidavits indicated that B.J. was living with petitioner because she would not obey her father.  By letter dated September 3, 2003, respondent"s designee again notified petitioner that B.J. was not a district resident, based on a determination that B.J."s father still had not relinquished total care, custody and control.

On September 19, 2003, the Family Court granted petitioner legal and physical custody of B.J.  On September 23, 2003, respondent"s designee gave petitioner and B.J."s father another opportunity to provide further information regarding the student"s residency, including the Family Court order.  B.J."s father stated in an affidavit that he gave petitioner "full responsibility for all matters in dealing with [B.J.]" and he no longer provided her health insurance.  He stated that he would provide B.J. with school clothing and "money for any items she may need for school."  Petitioner"s affidavit indicated that she had "all responsibility for all matters" and that she received no financial support and provided B.J. with food, clothing and other necessities.  Petitioner again stated that B.J."s mother is incarcerated and that the reason that B.J. lives with her is that her father cannot control her.  Petitioner also stated that she "can"t see any reason why [B.J."s mother] couldn"t" have custody of B.J. in the future if she wanted it.  The statements also indicated that B.J. visits with her father on weekends.

By letter dated September 24, 2003, respondent"s designee informed B.J."s father that B.J. was not a resident based on her conclusion that "total custody and control has not been given up" and that the sole reason B.J. was residing with petitioner was to take advantage of the district schools.

This appeal ensued.  Petitioner"s request for interim relief was granted on October 30, 2003.

Petitioner challenges respondent"s residency determination, asserting that she has legal and physical custody of B.J. Petitioner also maintains that she is responsible for B.J."s food, shelter and clothing and that she exercises control over B.J."s activities.

Respondent asserts that B.J. is not a district resident because she is living with petitioner to take advantage of the district"s educational program.  Respondent also maintains that B.J."s father has not transferred custody and control for purposes of Education Law "3202, as evidenced by his provision of school clothes and supplies, and his willingness to have her visit him on weekends.  Respondent also maintains that petitioner"s observation that B.J."s mother could seek custody upon release from incarceration supports its determination.

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 T.C., 43 Ed Dept Rep ___, Decision No. 14,910; Appeal of Y.R., 42 id. 376, Decision No. 14,886; Appeal of Maxwell, 42 id. 134, Decision No. 14,799).  A child"s residence is presumed to be that of his or her parents (Appeal of T.C., supra; Appeal of Hutchinson, 42 Ed Dept Rep 310, Decision No. 14,865; Appeal of Maxwell, supra).  That presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing in the district (Appeal of T.C., supra; Appeal of Maxwell, 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 T.C., supra; Appeal of Y.R., supra; Appeal of Hutchinson, supra).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of T.C., supra; Appeal of Y.R., supra; Appeal of Maxwell, supra) or the hardships of single parenting (Appeal of Taylor and Wilson, 43 Ed Dept Rep ___, Decision No. 14,930).  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 Taylor and Wilson, supra; Appeal of L.P., 43 Ed Dept Rep ___, Decision No. 14,901).

Based on the record before me, I find that petitioner has rebutted the presumption that B.J. resides with her father. The record reflects that, by order of the Family Court dated September 19, 2003, petitioner was granted legal and physical custody of B.J.  There is no evidence indicating that such transfer of custody was to enable B.J. to attend school in respondent"s district.  Instead, all affidavits submitted by petitioner and B.J."s father indicate that the custody transfer was sought because of family conflict.  The fact that B.J."s father indicates a willingness to have B.J. visit him on weekends is not inconsistent with petitioner"s claim that B.J. resides with her. 

Petitioner has also demonstrated that, as of September 23, 2003, B.J."s father had relinquished total custody and control of B.J. to petitioner.  Their affidavits stated that petitioner was responsible for making all decisions pertaining to B.J. and are consistent with the Family Court order.  There is no evidence in the record that B.J."s father continues to exercise control over her or is responsible for decisions pertaining to her education and welfare.

Moreover, with the exception of the statement that he would provide B.J. only with school clothes or money for items she needs for school, there is no evidence in the record that B.J."s father in fact provided this, or any other financial support.  Petitioner"s affidavit and verified petition indicate that she provides B.J. with food, shelter, clothing and other necessities.  Although B.J."s father previously provided her with health insurance coverage, he no longer did so as of September 23, 2003.

In support of its position, respondent cites petitioner"s statement that B.J."s mother could seek custody of B.J. upon release from incarceration.  I find this statement is inconclusive.  B.J."s mother"s release cannot occur until some time between 2006 and 2014.  The date of her release, whether she would seek custody and the circumstances at that future date are purely speculative at this time.

Therefore, I find that, on the record, petitioner has rebutted the presumption of parental residence, and that B.J. is a district resident entitled to attend district schools without payment of tuition.  Accordingly, respondent"s determination is set aside.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent permit B.J. to attend school in the Pine Bush Central School District without payment of tuition.

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