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Decision No. 15,396

Appeal of MARTHA CIFUENTES, on behalf of DANIELA YUSTI PINO, from action of the Board of Education of the Brentwood Union Free School District regarding residency.

Decision No. 15,396

(April 7, 2006)

Ingerman, Smith LLP, attorneys for respondent, Neil Block, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Brentwood Union Free School District ("respondent") that her granddaughter, Daniela, is not a district resident. The appeal must be dismissed.

Daniela is 11 years old and has never attended respondent's schools. Petitioner is a district resident. At the beginning of the 2005-2006 school year, petitioner attempted to enroll Daniela in respondent's schools and submitted a custodial affidavit by petitioner and a parent affidavit by Daniela's mother. The parent's affidavit indicates that Daniela's mother lives in Colombia and that Daniela went to live with petitioner on June 13, 2005 to give Daniela the opportunity for a better future. The parent's affidavit further indicates an intent to transfer custody of Daniela to petitioner. In the custodial affidavit, petitioner states that she will provide Daniela with food, clothing and all other necessities. Petitioner further states that the arrangement is for an indefinite period of time during which she will assume full responsibility for all matters relating to Daniela's education and medical care. The reason petitioner gave for Daniela's living with her was for Daniela "to attend school here, learn English and to better her future since in Colombia the parents aren't able to provide Daniela with much."

By letter dated September 19, 2005, respondent's designee for residency determinations notified petitioner that the information she submitted did not establish Daniela's residency because the arrangement appeared to be temporary and for the purpose of providing a different school placement. The letter invited petitioner to meet on September 26, 2005 and to submit additional documentary evidence. Petitioner attended this meeting but did not provide any further documentation. Respondent's designee issued a final determination on September 30, 2005 denying Daniela admission as a nonresident and finding the primary reason for the purported change of custody was for school purposes. This appeal ensued. Petitioner's application for interim relief was denied on October 31, 2005.

Petitioner contends that Daniela is a district resident and is entitled to attend respondent's schools tuition-free. Respondent contends that Daniela is presumed to reside with her parents in Colombia and that this presumption is not rebutted by the alleged transfer of her custody for the purpose of obtaining a better education in the district'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 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).

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 her affidavit, petitioner described the duration of the purported transfer of custody as "indefinite" and for the purpose of allowing Daniela to "attend school here, learn English and to better her future." Petitioner has presented no evidence of a court order or letters of guardianship transferring permanent custody of Daniela to petitioner and relies entirely upon the affidavits she submitted to the school district. On this record, I cannot conclude that petitioner has rebutted the presumption that Daniela's legal residence is with her parents, outside the district. Accordingly, I cannot find respondent's determination to be arbitrary, capricious or unreasonable.

THE APPEAL IS DISMISSED.

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