Appeal of CAROLANN PELLICCI, on behalf of her daughter JENNIFER KIRCHNER, from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 15,407

(May 17, 2006)

Donoghue, Thomas, Auslander & Drohan, LLP attorneys for respondent, Krystina E. Cho, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Pine Bush Central School District (“respondent”) that her daughter, Jennifer, is not a district resident.  The appeal must be dismissed.

Jennifer is 17 years of age and has not received a high school diploma.  She attended respondent’s schools from kindergarten until November 2005 of her senior year. 

In June 2005, petitioner moved outside the district to a residence in Woodburne, within the Fallsburg Central School District.  At that time, Jennifer moved in with her aunt, who resides in Bullville, within respondent’s district.  Her aunt provided Jennifer with food, shelter and clothing.  However, petitioner did not surrender parental control over Jennifer and maintains frequent contact with her.

On November 1, 2005, both petitioner and Jennifer’s aunt testified at a residency hearing.  Petitioner was notified by letter dated November 3, 2005 of respondent’s determination that Jennifer is not a resident of the district and cannot attend the district’s schools tuition free.  The letter also informed petitioner that respondent does not accept tuition students.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 9, 2005.

Petitioner contends that Jennifer resides with her aunt within the district and is entitled to attend respondent’s schools without payment of tuition.  Respondent contends that Jennifer resides with petitioner outside the district and is living with her aunt primarily to attend 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).  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). 

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). 

     Petitioner concedes that a change in legal guardianship of Jennifer was never sought.  Based on the record before me, I find petitioner has failed to rebut the presumption that Jennifer resides with her in Woodburne, outside the district.  Petitioner has not established that Jennifer’s permanent residence is with her aunt or that there has been a total transfer of custody and control.  I do not, therefore, find respondent’s determination to be arbitrary, capricious or unreasonable.

THE APPEAL IS DISMISSED.

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