Decision No. 12,499
Appeal of RAFAEL PINTO and DATHONIE PINTO, on behalf of RANDY D., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.
(May 28, 1991)
Procedure – Timeliness- Delay excused
Although the petitioners did not commence an appeal within thirty days of the decision that the student was not a resident of the district, since a child has a right to reapply for admission to school at any time and then appeal from any denial of admission, a delay in instituting such an appeal must be excused.
Students – Admission – residence
A child’s residence is presumed to be that of his or her parents or legal guardians. In the absence of compelling evidence that the student resides with his parent, instead of guardian, thus making the guardianship a sham, the presumption that he resides with the guardian is not rebutted.
APPEARANCES OF COUNSEL
Douglas E. Libby, Esq., attorney for respondent
DECISION OF THE COMMISSIONER
SOBOL, Commissioner. – Petitioners, as legal guardians, appeal on behalf of Randy, from respondent’s determination that he is not a resident of the Sewanhaka Central High School District and its refusal to allow him to continue to attend school there. Petitioners ask that I issue an order directing respondent to admit Randy to school. The appeal must be sustained.
Petitioners are Randy’s sister and brother-in-law and reside in the Sewanhaka School District. They allege that because Randy’s mother, who resides in Queens, New York, shares the responsibility of caring for her mother who lives in South Carolina and suffers from Alzheimer’s disease, she is unable to care for Randy. To address the situation, petitioners filed a petition for Letters of Guardianship with the Nassau County Surrogate’s Court. In September, 1988, Letters of Guardianship were issued to petitioners, who immediately enrolled Randy in respondent’s schools. These facts are not in dispute.
During the fall of 1990, respondent hired a private investigating firm to gather information concerning Randy’s residence. That investigation revealed that on three occasions Randy was driven to school from his mothers’ residence in Queens. Pursuant to 8NYCRR 100.2(y), respondent held a hearing on December 5, 1990, to determine if Randy is a resident of respondent district. At the hearing respondent presented the results of the investigation including the fact that a visit had been made to petitioners’ home when the child was not there. In addition, it was reported that shortly after Randy started attending respondent’s schools, he listed two addresses on an information card. Petitioners testified that they are Randy’s legal guardians and that he resides with them. They do not contest that Randy spends time with his mother, and openly acknowledge that such visits occur when his mother is in the State. Based on a review of the facts set forth above, respondent concluded in its decision of January 7, 1991, that Randy was not a resident of the district and, therefore, was not entitled to attend its schools. This appeal ensued.
Prior to a review of the merits, a procedural issue raised by respondent must be addressed. Respondent contends that this appeal must be dismissed as untimely. Pursuant to §275.16 of the Regulations of the Commissioner of Education, an appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. Respondent notes that its written decision on this matter was issued on January 7, 1991, and petitioners did not commence this appeal until February 14, 1991. In light of the fact that a child has a right to reapply for admission to school at any time and then appeal from any denial of admission, a delay in instituting such an appeal must be excused (Appeal of Richards, 25 Ed Dept Rep 38; Matter of Takeall, 23 id. 475). Accordingly, there is no basis to conclude that this appeal is untimely.
Regarding the merits, Education law §3202(1) provides in 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 the statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside with the district (Appeal of Curtin, 27 Ed Dept Rep 446).
It is well settled that a child’s residence is presumed to be that of one’s parents or legal guardians (Matter of Shelmidine, 22 Ed Dept Rep 206; Matter of Delgado 24 id. 279). As noted above, petitioners are Randy’s legal guardians. The fact that Randy spends time with his mother when she is in the State, that he was not home at the time respondent’s attendance officer visited or that the student listed two addresses at one time as his home does not rebut the presumption that he resides with his legal guardians. While a parent may not transfer guardianship of a child merely to achieve residence status for the child to take advantage of the local schools (Matter of Proias, 111 Misc 2d 252), there is no evidence to suggest that Randy’s mother transferred guardianship for that reason. It is undisputed that Randy’s mother is currently sharing responsibility for the car of her disabled mother who lives in South Carolina, making it impossible for her to care for her son at all times. Consequently, Randy’s mother consented to petitioners’ appointment as Randy’s legal guardians.
A person can have only one legal residence or domicile (Peo ex rel. The Brooklyn Children’s Aid Society v. Hendrickson, et.al., 54 Misc 337, affd 125 AD 256, affd 196 NY 551; Bd. Of Ed. V. Crill, 149 AD 407; Matter of Horowitz v. Bd. Of Ed., 217 AD 233). While an individual may have several places of abode, he must settle upon one as his domicile or legal residence, and must be bound by the consequences of the choice (Matter of Croen v. Bosco, et al., 2 AD2d 152; (Matter of Newcomb, 35 Misc 589, affd 122AD 920, affd 192 NY 238). Although the record indicates that Randy may have more than one place of abode, his legal residence or domicile is with petitioners in the Sewanhaka Central High School District. Similar to my conclusion in Forde, 29 Ed Dept Rep 359, that where a child’s time is divided equally between a custodial and noncustodial parent, the determination of the child’s residence is between the parents. The same principle is applicable here. Because the record indicates that petitioners are Randy’s court appointed legal guardians, and there is no evidence to suggest that the guardianship is a sham, the decision regarding the child’s residence must remain with the parent and legal guardians.
Respondent’s position implies that as long as Randy has contacts with his mother, petitioners cannot be his legitimate guardians and Randy, therefore, cannot reside with them. The fact that a child continues to maintain a relationship with a parent who has relinquished custody is not determinative in resolving the issue of the child’s residence (Appeal of McMullan, 29 Ed Dept Rep 310). In the absence of compelling evidence that randy actually resides with his mother, thus making his guardianship a sham, the presumption that he resides with petitioners in the Sewanhaka district has not been rebutted.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent continue to provide free education to Randy as a resident of its public schools consistent with this decision.