Appeal of WANDA VAZQUEZ, on behalf of FERHAT TERZI, from action of the Board of Education of the Islip Union Free School District regarding residency.

 

 

(February 28, 2003)

 

Ingerman, Smith, L.L.P., attorneys for respondent, Susan M. Gibson, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Islip Union Free School District ("respondent") that her nephew, Ferhat Terzi, is not a resident of respondent"s district.  The appeal must be dismissed.

As of October 2002, Ferhat was enrolled in respondent"s high school.  Respondent"s records indicated that Ferhat lived with his parents at an address within the district.  On October 17, 2002, respondent learned that the telephone at the parents" address had been disconnected.  The family provided school officials with a new telephone number, but that, too, was disconnected.  Respondent"s residency investigator visited the parents" listed address on October 29, 2002.  The owner of the property acknowledged that the Terzis had rented an apartment at that address, but said that they had left six or seven weeks earlier.  The investigator visited the property again on October 30, 2002.  The owner showed him the empty apartment, and again stated that the Terzis no longer lived there.

The investigator spoke to Ferhat twice about his address, and on the second occasion Ferhat stated that his family moved to Amityville, outside the district.  Ferhat provided a new telephone number, and the investigator contacted Ferhat"s mother on or about October 30, 2002.  Mrs. Terzi acknowledged that she, her husband and Ferhat resided in Amityville, but that Ferhat"s father worked in Islip and drove Ferhat to school every morning.  On November 1, 2002, respondent"s superintendent sent a letter to the Terzis, indicating that Ferhat would be excluded from respondent"s schools as of November 16, 2002. The superintendent invited the Terzis to a meeting on November 14, 2002, to submit any documentary evidence regarding Ferhat"s residency.

The Terzis did not meet with school officials or submit any documentary evidence by November 15, 2002, and Ferhat was excluded as of November 16, 2002.  However, on November 20, 2002, petitioner attempted to re-enroll Ferhat in respondent"s schools.  Petitioner submitted a custodial affidavit stating that Ferhat is her nephew, he has lived  with her since August 2002, and he intends to reside with her for three years, "the remaining years of his high school career."  She indicated that Ferhat"s parents were moving back to Turkey and transferring care and custody of Ferhat to petitioner.  Petitioner further stated that she had assumed full responsibility for Ferhat"s education and medical care.  However, in response to a question regarding the provision of food, clothing and other necessities, petitioner stated that Ferhat"s parents reimbursed her for all expenses.  Petitioner also submitted a parental affidavit from Mrs. Terzi stating that she relinquished custody and control of Ferhat to petitioner, for a period of three years because his "[P]arents are moving to Turkey and want Ferhat to finish his education in the United States."

Respondent"s investigator visited petitioner"s residence on November 25, 2002, at about 6:20 a.m.  The owner told him that Ferhat lived upstairs with his aunt, but that he had left the house earlier that morning.  Although the owner stated that she did not recall what time Ferhat left, when the investigator mentioned that he had been outside since 6:20 a.m., the owner recalled that Ferhat had left with her husband at approximately 5:00 a.m.  Based upon this surveillance and the information in the two affidavits, respondent sent a letter to petitioner on November 26, 2002, denying her request to enroll Ferhat.  This appeal ensued.  Petitioner"s request for interim relief was denied on December 31, 2002.

Petitioner contends that Ferhat moved in with her in August 2002 because of a family emergency that caused his family to relocate to Turkey, and that he intends to remain with her until he reaches the age of 21.  She states that the parents have surrendered parental custody and control of Ferhat, and that she provides him with food, shelter and clothing.  She alleges that Ferhat has a part-time job and  buys his own clothes, and she provides the rest of his necessities.  She requests that I determine that Ferhat is a resident of respondent"s district.

Respondent asserts that the Terzis did not relocate to Turkey, as petitioner contends, at least as of December 2002.  On December 17, 2002, the investigator visited the Amityville address previously given by Ferhat and Mrs. Terzi.  The owner of the property told him that the Terzi family had moved to Brentwood approximately two weeks earlier, but she did not have a forwarding address. That same day, the investigator also visited petitioner"s  address at 9:00 a.m., but did not see petitioner or Ferhat.  The owner of the property again advised him that Ferhat lived with his aunt at that address, but that neither of them was home.

 Respondent notes a number of contradictions between the allegations in the petition and the information submitted to respondent in the November custodial and parental affidavits.  In particular, respondent notes the disparity in the amount of time Ferhat will allegedly reside with petitioner (the petition states he will remain until age 21, but the affidavits state that he would reside with petitioner for the remaining years of high school), and who pays for Ferhat"s support (petitioner"s custodial affidavit states that the parents reimburse petitioner for Ferhat"s support, although the petition states that petitioner provides all support except clothes purchased by Ferhat).  Respondent also contends that petitioner has not documented her own residence within the district, and, in any event, any transfer of custody was solely to permit the student to continue attending respondent"s schools.

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 to students whose parents or legal guardians reside within the district (Appeal of L.W., 41 Ed Dept Rep ___, Decision No. 14,717; Appeal of Malek, 41 id. ___, Decision No. 14,697). A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of L.W., supra; Appeal of Malek, supra; Appeal of Donohue, 41 Ed Dept Rep _, Decision No. 14,601).  While this presumption may be rebutted upon a determination that there has been a total and presumably permanent transfer of custody and control to someone residing within the district (Appeal of Maxwell, 42 Ed Dept Rep ___, Decision No. 14,799; Appeal of L.W., supra), it is well settled that a student has not established residence when he or she is residing with someone other than a parent solely to take advantage of the schools in the district (Appeal of Cuesta, 42 Ed Dept Rep ___, Decision No. 14,755; Appeal of Marbury, 41 id. ___, Decision No. 14,634).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Newby, 42 Ed Dept Rep ___, Decision No. 14,790;  Appeal of Leontakianakos, 42 id. ___, Decision No. 14,757).  In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of B.O. and D.O., 42 Ed Dept Rep ___, Decision No. 14,769; Appeal of Teri, 41 id. ___, Decision No. 14,626).

I do not find that respondent was arbitrary or capricious in its determination that the purported transfer of custody and control was to take advantage of respondent"s educational program.  Both the custodial and parental affidavits, sworn to in November 2002, clearly indicate that the duration of the student"s residence with petitioner was intended to be limited to the remainder of his high school attendance.  Mrs. Terzi specifically noted that she wanted Ferhat to continue his schooling in the United States, even though the family was going to relocate to Turkey.  Additionally, although petitioner contends that the Terzi family was relocating to Turkey in August 2002, due to a family emergency, the record indicates that the Terzis were still living in New York as of early December 2002, although outside of respondent"s district.

Petitioner has also not established a complete and permanent transfer of custody, because of the limited period of the purported transfer of custody and also because Ferhat was apparently still living with his parents as of October 30, 2002, based on the investigator"s  conversation with Mrs. Terzi.  Petitioner has not rebutted the investigator"s depiction of his telephone conversation,  and this information contradicts petitioner"s assertion of a transfer of custody as of August 2002.  The custodial affidavit, sworn to in November 2002, also notes that the student"s parents were reimbursing petitioner for "all the expenses" for the student"s clothing, food and other necessities.  Where the parent continues to exercise custody and control of the child and continues to support him, the presumption of residence with the parent is not rebutted, and the child"s residence remains with the parent (Appeal of Russo, 41 Ed Dept Rep ___, Decision No. 14,599; Appeal of Bogetti, 38 id. 199, Decision No. 14,014).

 

THE APPEAL IS DISMISSED.

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