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Decision No. 15,278

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 15,278

(August 12, 2005)

Kehl, Katzive & Simon, 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 daughter is not a district resident. The appeal must be dismissed.

Petitioner resides within the Mahopac Central School District and initially enrolled his daughter in respondent's school district in January 2004. At that time, petitioner signed an affidavit stating that he had surrendered permanent care, custody and control of his daughter to his sister, who resides in New Rochelle, because the child's mother was deceased and because petitioner's job is located in Philadelphia and requires overnight travel. The affidavit also stated that petitioner would provide $600 toward his daughter's care, plus special expenses. Petitioner's sister submitted a corresponding affidavit.

In December 2004, respondent learned from a school social worker that petitioner's sister was electing to discontinue care, custody and control of her niece. On January 24, 2005, respondent's Director of Pupil Services met with petitioner's sister, who stated that complete care, custody and control remained with petitioner. On January 26, 2005, respondent's Director of Pupil Services met with petitioner who acknowledged that he retained full responsibility for his daughter and was seeking residential arrangements for her.

On January 27, 2005, respondent's Director of Pupil Services issued a letter excluding petitioner's daughter from school. This appeal ensued. Interim relief was denied on March 2, 2005.

Petitioner admits that he resides in the Mahopac Central School District, and states that he and his sister support his daughter and maintain control over her activities and behavior. He seeks an order allowing his daughter to attend respondent's schools until she is admitted to a special needs school.

Respondent contends that, because petitioner resides in Mahopac and did not surrender complete care, custody and control of his daughter to his sister, it did not act arbitrarily and capriciously when it excluded petitioner's daughter from school.

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).

Petitioner has failed to prove that he has relinquished full authority and responsibility for his daughter's support and custody. The petition states that both petitioner and his sister support petitioner's daughter and exercise control over her activities and behaviors. Moreover, according to respondent, petitioner's sister admitted that she does not maintain full custody, control and care for her niece.

Based on these facts, I find that petitioner has failed to demonstrate that he has surrendered to his sister full custody and control of his daughter. He has thus failed to rebut the presumption that his daughter resides with him. Accordingly, respondent's determination is neither arbitrary nor capricious and will not be set aside.

THE APPEAL IS DISMISSED.

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