Appeal of B.C., on behalf of her grandchildren X.S. and H.S., from action of the Bay Shore Union Free School District regarding residency.

     Decision No. 15,724

     (February 5, 2008)

Ingerman, Smith L.L.P., attorneys for respondent, Susan Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that her grandchildren, X.S. and H.S., are not district residents.  The appeal must be sustained.

On August 21, 2007, petitioner and her daughter, J.S., mother of X.S. and H.S., attempted to enroll the children in respondent’s public schools.  In her parent affidavit submitted to respondent with the application, J.S. identified her residence as Florida Avenue in Bay Shore, within respondent’s district.  Petitioner also submitted an affidavit that gave her residence as Potter Boulevard, in Bay Shore within respondent’s district and stated that X.S. and H.S. would reside with her for the entire 2007-2008 school year.  Petitioner’s affidavit stated that she shares custody and control of the children with their parents and with the children’s aunt, A.C., who also lives with petitioner.

By letter dated September 4, 2007, respondent’s director of student services and central registration (“director”) informed petitioner of his determination that there was insufficient evidence that custody of X.S. and H.S. had been relinquished to a bona fide resident of the district; that they lived within the district with an intent to remain; and that the reason for the purported transfer of custody was not solely for educational reasons.  This appeal ensued.

Petitioner contends that X.S. and H.S. have resided with her since May 26, 2007, and will continue to live there indefinitely.  Petitioner claims that X.S. and H.S. were voluntarily placed in her care by their parents, who now reside on Florida Avenue within respondent’s district. Petitioner claims that the children’s parents became homeless in May 2007, entered a drug rehabilitation program, and experienced financial hardship that led to the placement of the children in her care.

Respondent contends that petitioner has failed to rebut the presumption that X.S. and H.S. reside with their parents because she presented no evidence of a total transfer of custody and control.  Respondent admits petitioner’s allegation that she shares control over the children’s activities and behavior with their parents and their aunt, who also resides with petitioner.  Respondent does not deny petitioner’s allegation that the children’s parents reside on Florida Avenue within the district, which is also reflected in the parents’ August 21, 2007 affidavit.

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 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 Innocent, 44 Ed Dept Rep 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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (seeCatlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Nelson, 44 Ed Dept Rep 20, Decision No. 15,082).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

The record in this case does not indicate a permanent transfer of custody to petitioner that would rebut the presumption that X.S. and H.S. reside with their parents.  However, petitioner has nevertheless provided uncontraverted evidence that the children’s parents also reside within respondent’s district.  Affidavits submitted to respondent with the August 2007 application to admit the children, state that petitioner and the children’s parents all reside in Bay Shore within respondent’s district.  Respondent has not produced any evidence that petitioner or the children’s parents live outside the district.  Therefore, on the record before me, I am constrained to find that respondent’s determination is based on insufficient evidence and is arbitrary and capricious.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit X.S. and H.S. to attend school in the Bay Shore Union Free School District without the payment of tuition.

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