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Decision No. 14,018

Appeal of ROBERT ROSATI and NILDA ROSATI, on behalf of WILLIAM CEDENO from action of the Sewanhaka Central High School District regarding residency.

Decision No. 14,018

(September 15, 1998)

Maria Dellaratta, Esq., attorney for petitioners

Douglas E. Libby, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that their nephew is not a district resident for purposes of attending its schools tuition free. The appeal must be sustained.

Petitioners are the uncle and aunt of William Cedeno and reside in the Sewanhaka Central High School District ("district"). William Cedeno was a fourteen year-old student who attended high school in the New York City School District, where his parents resided before relocating to Puerto Rico in October 1997. William has lived with petitioners since October 4, 1997. On that date, William's parents signed an affidavit purporting to relinquish custody and control of William to petitioners, including the right to make decisions pertaining to the child's health, welfare and education, and including the obligation to provide financial support. The living arrangement is described as "permanent in nature" and the reason for the transfer, as stated in the affidavit, is because William did not want to relocate with his parents to Puerto Rico due to his lack of fluency in Spanish and because he has a happy and loving relationship with petitioners and his parents believe it is in his best interest to remain in New York with family members where he can thrive and do well. Also, on October 4, 1997, petitioners signed an affidavit stating that the transfer of custody is "permanent for an indefinite period of time" and includes responsibility for all matters relating to William's education. A school registration form was also submitted October 4, 1997 requesting permission to have William admitted to respondent's schools. The form identifies the applicants as William's guardians without court order, identifies petitioners as the persons in custodial relationship, and states that William is not living with his parents. The form is signed by William's parents and indicates that they will see their son during holiday vacations and the summer. It further indicates that the guardianship is "permanent at this time," that William's parents will provide 15-20% of his financial support and that petitioners will provide 80-100% of his financial support, including "all necessities."

By letter dated October 7, 1997, petitioners were notified by the district's Assistant to the Superintendent that William is not entitled to attend its public schools because his parents reside outside the district. By letter dated October 15, 1997, counsel for petitioners requested an appeal of this determination and a hearing was held on October 28, 1997 by an administrative hearing officer designated by respondent. At that hearing, petitioners testified that they took custody of William because his parents moved to Puerto Rico in an attempt to stabilize their marital and financial situation and felt that it was in William's best interest to live with his aunt and uncle in familiar surroundings. Petitioners testified that they believe William's parents would remain in Puerto Rico and have no plans to return to New York. Petitioners testified that their custodial arrangement is permanent even if William's parents do not remain together as a married couple because William is not fluent in Spanish and is unfamiliar with Puerto Rico and would be unhappy there. Petitioners further indicated that William has spent summers with them and made friends in their neighborhood. Petitioner Robert Rosati testified that William's parents no longer provide financial support and that all William's necessities are provided exclusively by petitioners, including medical expenses, and that petitioners were seeking to add William to their health insurance policy. While Robert Rosati testified that petitioners would attempt to consult with William's parents and have them come to New York if William developed a serious health problem, he also stated that petitioners would take responsibility for and make the same medical decisions for William as they would for their own children.

By letter dated November 7, 1997, the administrative review officer provided petitioners with her report concluding that William is not entitled to attend respondent's schools because his parents reside outside the district and notified them of their right to appeal to the Commissioner of Education. This appeal ensued. Petitioners' request for interim relief pending a determination on the merits was denied on December 19, 1997.

Petitioners contend that William resides with them in respondent's district and not with his parents in Puerto Rico. Petitioners seek a determination that William is a resident of the district and is entitled to attend district schools without the payment of tuition. Respondent contends that its determination is rational and supported by the record. Respondent also contends that its actions were not arbitrary, capricious or unreasonable.

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 only to district residents (Appeal of Kucherovsky, 37 Ed Dept Rep 241; Appeal of Cortes, 37 id. 114; Appeal of Keenan, 36 id. 6; Appeal of Brutcher, 33 id. 56. A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Simond, 36 Ed Dept Rep 117; Appeal of Gwendolyn B., 32 id. 151; Appeal of Pinto, 30 id. 374). That presumption can be rebutted where it is shown that the parents have relinquished total custody and control, in which case the child's residence becomes that of the person assuming parental control (Appeal of Gorrasi, 35 Ed Dept Rep 68; Appeal of Brutcher, supra). Formal guardianship proceedings are not necessary to establish custody and control for purposes of residency (Appeal of Britton, 33 Ed Dept Rep 120; Appeal of Pernell, 30 id. 380). However, with or without letters of guardianship, when 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 Pinto, supra; Appeal of McMullan, 29 Ed Dept Rep 310).

In this case, respondent relies on the presumption that William resides with his parents in Puerto Rico and contends that petitioners have not rebutted that presumption. However, the record indicates that William no longer lives with his parents, who relocated without him to Puerto Rico, and that petitioners have assumed custody and control over him, including the obligation to make decisions and to support him financially. Respondent believes that the guardianship is not necessarily permanent and that the motivation behind it is to take advantage of its schools. Respondent points to the school registration form indicating that William's parents will provide 15-20 percent of the financial support for William, that William will visit his parents, that his siblings will live in Puerto Rico, and that Robert Rosati testified that he would attempt to have the parents come to New York if William developed a severe medical problem. However, the record supports petitioners' position that William's parents intend to remain in Puerto Rico and are not, in fact, making decisions or providing financial support for William. The school registration form indicates that petitioners will provide 80-100% of William's financial support and Robert Rosati testified that William's parent's financial situation is chaotic and that he does not expect them to contribute any amount toward William's support.

With regard to the expectation that William may visit his parents occasionally in Puerto Rico and the possibility that his parents may be consulted if a severe medical condition occurs, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child to another is not determinative in resolving the question of the child's residence (Appeal of Lebron, 35 Ed Dept Rep 359; Appeal of McMullan, supra). In addition, I find the custodial arrangements for William's siblings to be irrelevant to his residency status. Finally, it appears that William's move to petitioners' home was prompted by a family crisis, his inability to assimilate readily into another environment that would require another language, and his positive relationship with petitioners and their children. The record does not support respondent's conclusion that the student's residence has been changed from that of his parents solely to take advantage of the educational program of another school district. Rather, there is a valid reason unrelated to respondent's educational program which prompted William's move. Under these circumstances, I find that William's actual and only residence is with petitioners (Appeal of Menci, 35 Ed Dept Rep 61; Matter of Staulcup, et al., 20 Ed Dept Rep 11; Matter of Morello, 9 id. 130).

Therefore, based on the record before me, I conclude that the presumption that William resides with his parents outside of respondent's school district has been rebutted. Accordingly, respondent's determination will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow William to attend school in the Sewanhaka Central High School District without the payment of tuition.

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