Appeal of L.P., on behalf of T.T., from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 14,901

(July 21, 2003)

 

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District (“respondent”) that her cousin, T.T., is not a district resident. The appeal must be sustained.

Petitioner resides within respondent’s district. In May 2001, petitioner’s cousin, T.T., moved from her mother’s house outside respondent’s district and began living with petitioner. In September 2001, petitioner and T.T.’s mother completed affidavits transferring custody and control of T.T. to petitioner, due to her mother’s financial hardship. The affidavits indicate that petitioner assumed full responsibility for all matters relating to T.T.’s education and medical care. In November 2001, petitioner added T.T. to her health insurance policy. T.T. attended school in respondent’s district for the 2001-2002 and 2002-2003 school years. On October 25, 2002, T.T. was suspended from school for five days, and her mother came to school to pick her up. Thereafter, respondent’s superintendent held a disciplinary hearing pursuant to Education Law §3214, attended by both petitioner and T.T.’s mother. On December 20, 2002, respondent notified petitioner that a hearing would be held on January 7, 2003 to determine T.T.’s residency. By letter dated January 10, 2003, respondent notified petitioner and T.T.’s mother of its determination that T.T. was not a resident of respondent’s district and that, as of January 17, 2003, she would be excluded from respondent’s schools. This appeal ensued. Petitioner’s request for interim relief was granted on January 31, 2003.

Petitioner claims that T.T. resides with her within respondent’s district, and that T.T.’s mother has relinquished complete custody and control of T.T. to her because of financial hardship. She further alleges that she is T.T.’s guardian and has assumed sole responsibility for providing her with food, shelter, clothing and medical care. She claims that she exercises control of T.T.’s activities and behavior and has assumed responsibility for all educational matters.

Respondent asserts that there has not been a complete and permanent transfer of care, custody and control of T.T. from her mother to petitioner. Further, respondent claims that petitioner does not meet the legal definition of “custodian” under Education Law §3212(1). Accordingly, respondent asserts that petitioner has not established that T.T. is a district resident and seeks to have the appeal dismissed.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Y.R., 42 Ed Dept Rep ___, Decision No. 14,886; Appeal of Maxwell, 42 id. ___, Decision No. 14,799; Appeal of Thomas, 41 id. 84, Decision No. 14,622).

A child's residence is presumed to be that of his or her parents (Appeal of Y.R., supra; Appeal of Hutchinson, 42 Ed Dept Rep ___, Decision No. 14,865; Appeal of Vazquez, 42 id. ___, Decision No. 14,841). That presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing within the district (Appeal of Y.R., supra; Appeal of Maxwell, supra). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court, 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 Y.R., supra; Appeal of Hutchinson, supra).

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 Hutchinson, supra; Appeal of Maxwell, supra). 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., supra; Appeal of Maxwell, supra; Appeal of Lapidus, 40 Ed Dept Rep 21, Decision No. 14,408). 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, 41 Ed Dept Rep 26, Decision No. 14,601).

Respondent does not dispute petitioner’s claim that T.T. lives with her within the district. Rather, respondent claims that Education Law §3212(1) precludes petitioner from asserting she is T.T.’s custodian. Education Law §3212(1) provides, in pertinent part:

...a person in parental relation to another individual shall include his father or mother, by birth or adoption, his step-father or step-mother, his legally appointed guardian or his custodian. A person shall be regarded as the custodian of another individual if he has assumed the charge and care of such individual because the parents or legally appointed guardian of such individual have died, are imprisoned, are mentally ill, or have been committed to an institution, or because, they have abandoned or deserted such individual or are living outside the state or their whereabouts are unknown.

Respondent argues that, because T.T.’s mother does not fall into any of the categories listed in §3212, petitioner cannot meet the definition of “custodian” in the statute, and that T.T. therefore is not a district resident.

Education Law §3212 fixes responsibility of certain individuals to ensure compliance of minors with the compulsory attendance law, and does not govern residency determinations under Education Law §3202. Moreover, prior Commissioner’s decisions have not required a petitioner to meet the statutory definition of “custodian” in order to establish a child’s residency. The critical test for school residency purposes is whether there has been a total, and presumably permanent, transfer of custody and control to a person residing in the district (Appeal of Hardick, supra; Appeal of Rivera, supra). It is not necessary to establish such transfer through a formal guardianship proceeding (See, e.g. Appeal of Hardick, 41 Ed Dept Rep 300, Decision No. 14,693; Appeal of Rivera, 38 id. 119, Decision No. 13,997).

Respondent asserts that T.T.’s mother has not relinquished total custody and control to petitioner. Respondent bases this assertion on the fact that T.T.’s mother picked her up from school on the day the student was suspended, that she attended T.T.’s disciplinary hearing and in several instances had discussed school issues with T.T. Petitioner indicates that she was contacted by the district on October 25, 2002 and informed of T.T.’s suspension. She further states that, due to her employment responsibilities, she was unable to leave immediately to pick T.T. up from school. She contacted T.T.’s mother and asked her to do so. I do not find this explanation implausible, nor do I find that the mere attendance of T.T.’s mother, with petitioner, at the disciplinary hearing, to be inconsistent with the relinquishment to petitioner of T.T.’s custody and control.

The documentation submitted by petitioner, including medical insurance claims and a statement from the district’s home tutor, indicates that petitioner has assumed financial and educational responsibility for T.T. and intends to do so indefinitely. Upon review of the entire record, I find petitioner has established that T.T. resides with her in respondent’s district and is entitled to attend its public schools.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent allow T.T. to attend school in the Deer Park Union Free School District without payment of tuition.

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