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Decision No. 15,448

Appeal of GILLIAN H. COY, on behalf of her daughter STEPHANIE COY, from action of the Sewanhaka Central High School District regarding residency.

 

Appeal of ROBERT YOUNG, on behalf of his niece STEPHANIE COY, from action of the Sewanhaka Central High School District regarding residency.

 

Decision No. 15,448

 

(August 21, 2006)

 

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

 

MILLS, Commissioner.--In two separate appeals, petitioners challenge the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that Stephanie Coy is not a district resident.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioner Coy (“Coy”) is Stephanie’s mother, and is not a district resident.  Petitioner Young (“Young”) is Stephanie’s uncle and resides within respondent’s district.  In September 2005, Coy, at that time residing in Queens, enrolled Stephanie in respondent’s Elmont Memorial High School.  Stephanie was admitted based upon Coy’s submission of a contract for purchase of a house within the district.  Later in September, respondent discovered that the house under contract was not located in its district, but rather in the Valley Stream Central High School District.

By letter dated October 7, 2005, the Administrative Assistant to the Superintendent informed Coy that a determination had been made that the house she intended to purchase was not located in the district and that Stephanie would be excluded from the district effective October 25, 2005.  By letter dated October 12, 2005, Coy appealed this determination to respondent’s Administrative Review Officer.  A review hearing was set for October 27, 2005.  Coy was asked to submit a new registration packet prior to the hearing.

Coy and Young submitted a new registration packet on October 24, 2005.  At that time, they listed Young as Stephanie’s guardian.  Coy also revealed that the financing for the new home had fallen through and that she was looking to purchase a house in the district, but did not presently reside there.

The Administrative Review Officer issued a determination by letter dated November 16, 2005 that Stephanie was not a district resident and that Coy had not effected a bonafide relinquishment of care, custody and control of Stephanie to Young.  This appeal ensued.  Petitioners’ requests for interim relief were denied on December 15, 2005.

Petitioners contend that Stephanie lives with Young within the district, that Coy has surrendered parental control over Stephanie to Young, that Young provides food, shelter and clothing for Stephanie, and exercises control over her activities and behavior.

     Respondent claims that Coy does not reside in the district.  It also maintains that Coy has not surrendered parental control to Young. Respondent asserts that at the review hearing Coy admitted that the living situation with Young is temporary, that she will contribute to Stephanie’s support and  will be responsible for matters related to her daughter’s education.

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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

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 Nelson, 44 Ed Dept Rep 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).  Moreover, where the sole reason the child is residing with someone other than a parent or legal guardian 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 this case, Coy acknowledges that she continues to provide financial support for her daughter and has not made a total transfer of custody and control to Young.  It appears that by Young’s own admission the sole reason Stephanie resides with him is to attend school in respondent’s district.  As discussed above, residence is not established in such case.  Thus, respondent’s determination was neither arbitrary nor capricious and will not be overturned.

 

THE APPEALS ARE DISMISSED.

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