Appeal of NEIL and THERESA GOLDMAN, on behalf of CARISSA ABRAMOWSKI, from action of the Board of Education of the Sachem Central School District regarding residency.

Decision No. 15,488

(November 21, 2006)

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Sachem Central School District (“respondent”) that their granddaughter is not a district resident.  The appeal must be sustained.

Petitioners’ granddaughter, Carissa, is a student at respondent’s high school.  In July 2006, Carissa’s mother moved to North Carolina with her husband and her other three children, and Carissa moved into petitioners’ home.

On August 14, 2006, when petitioners requested a copy of Carissa’s class schedule, the district requested proof of residency.  On August 17, 2006, respondent’s attendance officer informed petitioners via telephone that Carissa was not a resident of the district and could not register for school.  The attendance officer confirmed this determination in a letter dated August 22, 2006.  This appeal ensued. Petitioners’ request for interim relief was granted on September 6, 2006.

Petitioners claim that Carissa is a resident of respondent’s district and is entitled to attend school tuition free.  Respondent alleges that Carissa’s mother has not relinquished care and custody of her daughter, and that the primary reason for Carissa’s move to her grandparents’ home is to take advantage of respondent’s schools.

Initially, I must address petitioners’ reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

       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).

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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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).

Petitioners have submitted an affidavit, signed by Carissa’s mother and notarized on August 25, 2006, which states that she has surrendered all control and custody of Carissa to petitioners and that Carissa’s residence with petitioners will be permanent.  Petitioners have provided their own sworn statement that they have assumed total and permanent custody and control of Carissa and that they are responsible for her support, including medical expenses.  Respondent has provided no evidence to the contrary.

Respondent argues that Carissa lives with petitioners solely for the purpose of attending school in respondent’s district.  As support for its argument, respondent cites petitioners’ statements that Carissa and her mother have an “excellent” relationship and speak daily by cell phone.

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).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Hardick, 41 Ed Dept Rep 300, Decision No. 14,693) or the hardships of single parenting (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).

Here there is evidence that Carissa has strong ties to the community.  Among other things, petitioners explain that Carissa has volunteered as a literacy reader and works at the local public library.  Also, for four years she has volunteered as an assistant lifeguard at the town pool and has served as an assistant teacher and teacher for Vacation Bible School.  Therefore, although Carissa maintains a good relationship with her mother, there are reasons other than respondent’s school district which resulted in her decision to remain with her grandparents.

In light of the fact that Carissa is living with petitioners, that Carissa’s mother has transferred custody and control, and that Carissa has other bona fide reasons for not residing with her mother, I find that petitioners have shown that Carissa is a resident of respondent’s district and is entitled to attend its schools tuition free.

THE APPEAL IS SUSTAINED.

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