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Decision No. 13,955

Appeal of C.D., on behalf of A.D., from action of the Board of Education of the Wallkill Central School District regarding residency.

Decision No. 13,955

(June 11, 1998)

Norman S. Goldsmith, Esq., attorney for petitioner

Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination by the Board of Education of the Wallkill Central School District ("respondent") that her son, A.D., is not a resident of the district. The appeal must be dismissed.

Prior to the 1996-1997 school year, petitioner and her son, A.D., lived within the Wallkill Central School District and A.D. attended district schools. Early in 1997, petitioner and her son moved out of the district, but A.D. was allowed to attend district schools through June 1997 in accordance with the district's nonresident attendance policy. In September 1997, A.D. was again registered as a tenth grade student with a handicapping condition in respondent's district. Shortly after the beginning of the school year, the principal of respondent's high school scheduled a residency hearing which was conducted on October 14, 1997. At the hearing, petitioner and her attorney freely admitted that she and A.D. no longer lived within the district, but argued that A.D. should be allowed to continue in attendance because petitioner pays school taxes on property she owns in the district, and because any change in A.D.'s special education program could affect him adversely. Petitioner and her attorney further indicated that A.D. would be moving in with an uncle who is a district resident, and that petitioner and the uncle would execute residency affidavits as required by respondent.

On October 20, 1997, both petitioner and A.D.'s uncle executed form affidavits with respect to A.D.'s custody and residence. Petitioner's affidavit purported to relinquish custody and control of A.D. to his uncle, but stated that "...because of his educational handicap I would like to be consulted in regards to emergency or out of the ordinary situations and I will maintain the medical insurance which I have for him." Petitioner's affidavit also stated: "[A.D.] will be living with his [uncle] so that he will be able to finish his special ed. schooling in the high school where he started."

The uncle's affidavit also states that A.D. will be living with him so that A.D. "can finish his special educational schooling in the school system where he started the program," and indicates that he will provide food, clothing, and other necessities. However, the affidavit contains a further statement: "I assume responsibility for [A.D.'s] education and medical care. However, in view of his handicap, I feel it appropriate to consult with his mother in emergency situations or an out of the ordinary situation, and his mother will be assuming any medical expenses that may be incurred."

On October 22, 1997, respondent's assistant superintendent issued a determination finding that neither petitioner nor A.D. was a district resident and concluding that A.D. was, therefore, not entitled to attend school in the district. He further found that petitioner had not transferred total care, custody, and control of A.D. to his uncle who resides in the district. The assistant superintendent further found that the purpose of the attempted change in custody was to take advantage of the district's schools.

By agreement of the parties, A.D. has been allowed to continue as a student in respondent's schools during the pendency of this appeal. This appeal was commenced November 21, 1997.

Petitioner concedes that she is not a resident of the district, and the law presumes that A.D. resides with her (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). Petitioner's argument that her payment of school taxes on property she owns within the district should allow her son to attend the district's schools as a resident is clearly contrary to the law (Matter of Fenton, 15 Ed Dept Rep 100).

Petitioner's argument that A.D.'s status as a special education student should entitle him to attend the district's schools is likewise unpersuasive. Residency is determined by a combination of intent and physical presence (Matter of Whiteman, 24 Ed Dept Rep 337). The type of educational program in which a student is placed has no relevancy in the determination of residency.

I agree with respondent that petitioner has failed to prove that she has made a complete, permanent transfer of custody and control of her son A.D. to his uncle who resides in the district. The affidavits of petitioner and A.D.'s uncle contain important reservations, and other statements that clearly indicate something less than a complete transfer of custody. They further reveal an intent to make a transfer for the purpose of obtaining the benefit of respondent's educational system. As numerous Commissioner's decisions have previously indicated, the purported transfer of custody and control of a child for such purpose is clearly insufficient (Appeal of Rivkin, 37 Ed Dept Rep 370; Appeal of Galay, et al., 37 id. 128; Appeal of Simond, 36 id. 117).

Even if the affidavits did not contain such material, it is clear that, in fact, A.D. has not moved in with his uncle. No physical transfer of A.D. has occurred. This is indicated in petitioner's memorandum of law received February 6, 1998, which states: "Petitioner has been forthright in her attempt to fulfill the requirements needed to have her son complete his remaining time at years [sic] at Wallkill Senior High School, agreeing that at this time he resides with her outside of the district." (emphasis added).

Under these factual circumstances, with A.D. continuing to reside outside of the district with his mother, there can be no doubt that he is not a resident of the district and that he is not entitled to attend the schools of the district.

THE APPEAL IS DISMISSED.

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