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Decision No. 15,085

Appeal of MAXINE SLOLEY-RAYMOND, on behalf of her sister LETISHA MCDERMOTT, from action of the Board of Education of the Elmsford Union Free School District regarding residency.

 

 

(July 15, 2004)

 

Keane & Beane, P.C., attorneys for respondent, Mark D. Pellis and Stephanie M. Roebuck, Esqs., of counsel

 

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

Letisha began attending the district"s schools in September 2002.  In January 2004, respondent learned that Letisha might reside in another district and retained a private investigator. Based on surveillance conducted on seven dates, the investigator concluded that Letisha resided with her parents in the Bronx.

By letter dated March 5, 2004, respondent"s superintendent informed Letisha"s parents that because they had not responded to her request for information on Letisha"s residence, Letisha would be excluded from the district"s schools effective March 12, 2004. This appeal ensued.  Petitioner"s request for interim relief was granted on March 29, 2004.

Petitioner alleges that Letisha resides with her in the district. She contends that Letisha lives with her because their mother is experiencing financial hardships, and  intends to reside with her until she enters college in four years.

Respondent asserts that petitioner has not rebutted the surveillance evidence indicating that Letisha resides with her parents in the Bronx.  It further contends that Letisa"s parents have not relinquished total custody and control to petitioner because Letisha"s parents, and not petitioner, have been involved in all discussions with school authorities concerning Letisha"s educational progress.  Respondent also claims that petitioner has failed to offer any evidence supporting her allegation that Letisha"s parents are experiencing financial difficulties.

 

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 the school district to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of a Student with a Disability, 43 Ed Dept Rep ___, Decision No. 14,926; Appeal of O.W., 43 id.  ___, Decision No. 14,949).  A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of a Student with a Disability, supra; Appeal of O.W., supra).  This presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing in the district (Appeal of a Student with a Disability, supra; Appeal of O.W., supra).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child"s permanent residence, and that the individual exercising control has full authority and responsibility with respect to the child"s support and custody (Appeal of a Student with a Disability, supra; Appeal of O.W., supra).  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 a Student with a Disability, supra; Appeal of O.W., supra).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Newby, 42 Ed Dept Rep 107, Decision No. 14,790; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757). In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of B.H. and B.H., 43 Ed Dept Rep __, Decision No. 14,919; Appeal of J.T., 43 id. __, Decision No. 14,917).

Petitioner"s evidence of residency is essentially limited to the conclusory statements of petitioner and Letisha"s mother that Letisha resides with petitioner in the district due to financial circumstances.  She has not submitted any evidence to rebut the investigator"s report. 

Furthermore, petitioner has not established that Letisha"s parents have relinquished custody and control.  In fact, petitioner admits that Letisha"s parents have not surrendered parental control.  She also has not refuted that Letisha"s parents alone have been involved in all discussions with school authorities concerning Letisha"s educational progress.  Accordingly, respondent"s determination was not arbitrary or capricious. 

THE APPEAL IS DISMISSED.

END OF FILE