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Decision No. 14,641

Appeal of CHRISTINE L. IANNINO, on behalf of ANTONIO IANNINO, from action of the Board of Education of the Pleasantville Union Free School District regarding residency.

Decision No. 14,641

(September 4, 2001)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pleasantville Union Free School District ("respondent") that her son, Antonio, is not a district resident. The appeal must be dismissed.

Petitioner and her husband, Antonio's father, reside part of the year at 34 Stanley Street, Pleasantville, within the Mount Pleasant Central School District ("Mount Pleasant"). They also spend part of the year in Italy attending to business and caring for Antonio's paternal grandparents.

Antonio's sister, Alessandra Iannino, resides at 30 Hobby Street, Pleasantville, within respondent's district. According to petitioner, Antonio resides approximately five non-consecutive months at 34 Stanley Street, five non-consecutive months at 30 Hobby Street and two consecutive months in Italy. Petitioner enrolled Antonio in respondent's schools for the 2000-2001 school year using the Hobby Street address. On May 24, 2001, respondent's superintendent wrote to petitioner stating that a question had arisen as to Antonio's residence and requesting information supporting his residency in respondent's district. Petitioner submitted an agreement dated September 1, 2000 purportedly transferring custody and control of Antonio to Alessandra. Respondent's superintendent notified petitioner, by letter dated June 15, 2001, that he had determined that Antonio was not a district resident. Antonio was allowed to complete the school year in respondent's schools. This appeal ensued.

Petitioner contends that she and her husband transferred custody and control of Antonio to Alessandra for safety reasons during the periods that they are in Italy. Respondent contends that Antonio resides with his parents in the Mount Pleasant school district.

The appeal must be 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 Mario D., 41 Ed Dept Rep ___, Decision No. 14,600; Appeal of Lapidus, 40 id. ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Mario D., supra; Appeal of Epps, supra), but this presumption may be rebutted (Appeal of Ramirez, 40 Ed Dept Rep ___, Decision No. 14,449; Appeal of Juarez, 39 id. 184, Decision No. 14,208). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total transfer of custody and control to someone residing within the district (Appeal of Mario D., supra; Appeal of Juarez, supra; Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201). Where the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Beska, 39 id. 661, Decision No. 14,344). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Pernell, 30 id. 380, Decision No. 12,502), it is necessary to demonstrate that a particular location is a child's residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of Rivera, 38 id. 119, Decision No. 13,997).

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 Epps, supra; Appeal of Ramirez, supra; Appeal of Beska, supra). A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Karmin, supra).

Here, petitioner has failed to rebut the presumption that Antonio resides with his parents within the Mount Pleasant school district. Petitioner submits a notarized statement executed by Alessandra that states that Antonio resides with Alessandra when petitioner and her husband are in Italy. She also submits a copy of the "custody" agreement that states that she and her husband reside at the Stanley Street address and that Antonio resides with Alessandra "for the purpose of enrolling and completing his school education in the Pleasantville School District." Further, the agreement states that "the parents shall provide any and all support and spending money necessary for their son during the period of this custodianship." While additional child care arrangements may be required for the periods that petitioner and her husband are in Italy, those temporary arrangements do not rise to the level of a complete transfer of custody and control. Based on the record before me, I cannot find that respondent's

determination is arbitrary, capricious or unreasonable.

THE APPEAL IS DISMISSED.

END OF FILE