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Decision No. 15,276

Appeal of JEFFREY COOK, on behalf of his nephew JOSEPH, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 15,276

(August 12, 2005)

Kehl, Katzive & Sigmond, LLP, attorneys for respondent, Terri E. Simon, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle ("respondent") that his nephew, Joseph, is not a district resident. The appeal must be dismissed.

On August 26, 2004, petitioner, a district resident, met with respondent's director of pupil services ("director") to discuss enrolling Joseph as a junior at New Rochelle High School. By a written decision of the same date, the director determined that Joseph was not entitled to attend the district's schools because total care, custody and control of Joseph had not been transferred. This appeal ensued. Petitioner's request for interim relief was denied on September 16, 2004.

Petitioner contends that Joseph is a district resident and is entitled to attend respondent's schools because Joseph's father made a total and permanent transfer of custody and control to petitioner. Petitioner claims that Joseph will permanently reside with him, that he provides Joseph with food, clothing and shelter, and that he exercises control over all of Joseph's activities.

Respondent claims that its residency determination was rational and supported by the record. Petitioner also asserts that custody of Joseph was transferred to petitioner solely for educational purposes.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105). The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930; Appeal of L.P., 43 id. 12, Decision No. 14,901). 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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (seeCatlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L.H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Nelson, 44 id. 20, Decision No. 15,082). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917). In addition, a residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

In this case, petitioner has failed to rebut the presumption that Joseph's residency is with his father in Las Vegas, Nevada. First, petitioner has not established that Joseph's father made a total transfer of custody and control. To the contrary, petitioner informed the director that Joseph would only be living with him until he graduated from high school, that Joseph's father would provide him with health insurance and some financial support, and that his father would actively participate in the ongoing planning for Joseph's education and future.

Petitioner also states in the petition that Joseph visited him for summer vacation and "learned of t he obvious improved academic and athletic opportunity" and "[I]n an effort to increase the likelihood of a university education," petitioner and Joseph's father agreed to the transfer of custody. Therefore, even if there were an actual transfer of custody and control, I conclude that it was for educational purposes, which is insufficient to confer residency (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098).

Based on the totality of the record, I find that respondent's determination that Joseph is not a district resident was neither arbitrary nor capricious.

THE APPEAL IS DISMISSED.

END OF FILE