Appeal of ASSUNTA PALMIERI, on behalf of her grandsons JAMES and NICHOLAS, from action of the Board of Education of the Northport-East Northport Union Free School District regarding residency.

Decision No. 15,293

(August 22, 2005)

Arthur E. Olmstead, Esq., attorney for petitioner

Ingerman Smith, LLP, attorneys for respondent, Jonathan Heidelberger, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Northport-East Northport Union Free School District ("respondent") that her grandsons are not district residents. The appeal must be sustained.

Petitioner resides in respondent's district. Her grandsons, who are now 17 and 15 years of age, have lived with her in the same residence since birth and have attended respondent's schools since kindergarten. In June 2001, the children's mother moved from the house, and the children remained with their father and petitioner. The children's father moved out of State in July 2004, and the children remained with petitioner. By letter dated January 6, 2005, respondent's Executive Director of Pupil Services notified the boys' mother that they were not entitled to attend district schools because they were not district residents. This appeal ensued. Petitioner's request for interim relief was granted on February 4, 2005.

Petitioner asserts that her grandsons reside with her and that she exercises full authority and responsibility for their support and custody. Respondent asserts that there has not been a total and permanent transfer of guardianship to petitioner, and that petitioner has not rebutted the presumption that the children's residence changed to the residence of either their mother or father. Respondent also argues that it sends copies of correspondence concerning the children to their mother and that she maintains contact with her children.

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

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent , 44 id. 81, Decision No. 15,105).

The presumption that a child resides with his or her parents or legal guardians can 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 I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930; Appeal of L.P., 43 id. 12, Decision No. 14,901). While it is not necessary to establish parental custody and control through a formal guardianship proceeding, 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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence ( Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Y.R., 42 Ed Dept Rep 376, Decision No. 14,886; Appeal of Maxwell, 42 id. 134, Decision No. 14,799) or the hardships of single parenting (Appeal of I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, 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 I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930).

There is no dispute that James and Nicholas reside in the district. James has been physically present at petitioner's house in respondent's district since his birth in 1988, and Nicholas has been physically present since his birth in 1990. The boys lived with their father, mother and petitioner until their mother moved out in June 2001 due to marital conflict. The children continued living with petitioner and their father until their father moved out in July 2004 to seek employment in Kentucky. The boys, now 17 and 15 years of age, have known no home other than petitioner's residence in respondent's district. Respondent concedes that it lacks knowledge or information sufficient to form a belief as to the truth of petitioner's sworn statement that the boys have always resided with her. Moreover, petitioner's status as the only adult who has lived with the boys their entire lives tends to support her assertion that the children intend to reside with her permanently. Accordingly, petitioner has established the physical presence of James and Nicholas as inhabitants of respondent's district.

Moreover, petitioner has rebutted the presumption that James and Nicholas live with their parents. The boys live with petitioner in the district residence under a life estate that petitioner reserved to herself when she transferred ownership of the house to her son, the children's father, in 2000. When petitioner's son left for Kentucky last year, he and the children's mother agreed to transfer the boys' care and custody to petitioner. Since that time, petitioner has exercised responsibility for providing the boys with supervision, food, shelter, clothing and financial support. There is no evidence that the transfer of custody was to enable James and Nicholas to attend school in respondent's district. Instead, the record indicates that custody was transferred to petitioner because the children's father left the family home in respondent's district to seek employment in Kentucky. Therefore, petitioner has established that the transfer of custody was unrelated to taking advantage of the district's schools and rebutted the presumption that James and Nicholas reside with their parents.

The fact that James and Nicholas still have some contact with their parents is not dispositive here. The children's father, who moved to Kentucky last year, visits the children on occasion and talks to them regularly by phone. The children have maintained a good relationship with their mother and see her once or twice a week. Respondent acknowledges that the contact the school initiated with the children's mother was in accordance with its normal practice of providing copies of correspondence to parents of students who do not live with their children. The contact that the children's parents have maintained since establishing residences elsewhere is not a decisive factor in determining the children's residency here because the level of contact is not inconsistent with petitioner's assertion that she exercises full authority over the children (see e.g. Appeal of I.M., 43 Ed Dept Rep 500, Decision No. 15,065).

Upon the record before me, I find that the children's actual residence is with petitioner. Accordingly, respondent's determination is set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow James and Nicholas Palmieri to attend school in the Northport-East Northport Union Free School District without payment of tuition.

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