121 Misc. 2d 395 | N.Y. Sur. Ct. | 1983
OPINION OF THE COURT
Heretofore and on September 28, 1983, a hearing in this matter was held before the law secretary-referee designated pursuant to SCPA 506 (subd 6). Upon the court’s review of the proceedings the report of the referee filed and dated September 28,1983 is confirmed and shall constitute the determination of the court as follows: That I find that Jean Antoine Moncrieffe is an infant over the age of 14 years having been born on July 5,1966.1 further find that this court has jurisdiction of this infant and this proceeding by reason of the petition filed and that the infant is presently residing within the County of Nassau. The natural mother of this infant, a resident and citizen of Jamaica, West Indies, has by written instrument consented to the appointment of the proposed guardian. The natural father of this boy is deceased having died in or about 1969. It appears that the infant petitioner, through his father, is a citizen of the United States. Through the death of his father, petitioner is also the recipient of Social Security benefits which have since 1979 been deposited directly in a savings account maintained at the Roslyn Savings Bank. That account bears the name of his mother as representative payee. It is seen from the testimony, school record and
The Uniondale School District was given notice of this proceeding and has actively appeared in opposition to this application for guardianship voicing the objection that the infant’s present residence has been accomplished solely for school purposes. Upon this view of the facts, respondent district has refused to enroll petitioner as one of its resident students although application was otherwise duly made.
In consideration of petitioner’s actual presence and the absence of his sole surviving parent, there appears to be a clear and present need for the appointment of a guardian of the person within this jurisdiction to see to his general well-being and specific day-to-day needs. I am further satisfied that Vincent Ellis, the proposed guardian of the person, is a suitable and interested individual relative to this child, both capable and willing to discharge the office of guardian. The proposed guardian has known the infant since birth and there appears to be a close relationship between petitioner’s family and the proposed guardian. As heretofore indicated, the infant is presently residing with the proposed guardian. This relationship is positive when viewed with respect to the growth and maturation of this child.
Respondent school district questions the bona fides of petitioner’s residence and therefore the guardianship itself (Matter of Proios, 111 Misc 2d 252). It is provided by statute that every school district must furnish a free public school education to all residents of its district (NY Const, art XI, § 1; Education Law, § 3202). Upon the hearing, respondent school district has represented that it does not accept nonresident pupils on any basis including the payment of tuition.
Residence for public school education purposes envisions a physical presence with the intention of remaining. Residence solely to achieve the right to attend a particular school would fail to meet the traditional test of residence
Accordingly, I am satisfied that the proposed guardianship is bona fide and the petition is granted and a decree