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Decision No. 15,511

Appeal of SONYA MOYER, on behalf of her son DUSTIN, from action of the Board of Education of the Greece Central School District regarding residency.

Decision No. 15,511

(December 28, 2006)

Harter, Secrest & Emery, LLP, attorneys for respondent, Bethany A. Centrone, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Greece Central School District (“respondent”) that her son, Dustin, is not a district resident.  The appeal must be dismissed.

At the beginning of the 2006-2007 school year, petitioner, a resident of the Gates-Chili Central School District, requested that Dustin be permitted to attend respondent’s Olympia High School. At that time, petitioner indicated that Dustin was living with his great grandmother inside the district.

By letter dated September 12, 2006, respondent’s deputy superintendent of schools (“deputy superintendent”) informed petitioner that, based upon the information petitioner and the great grandmother provided, he had determined that petitioner had not relinquished total custody and control of Dustin and that he was not entitled to attend school within the district.

By letter dated September 13, 2006, petitioner requested that the deputy superintendent reconsider his decision.  By letter dated September 18, 2006, the deputy superintendent upheld his initial determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 4, 2006.

Petitioner alleges that she has surrendered parental control of Dustin to his great grandmother, who provides him with food, shelter and clothing, and exercises control over his activities.  Petitioner requests that I determine that Dustin is a resident of respondent’s district.  Respondent maintains that petitioner has not relinquished total custody and control over Dustin and that Dustin is not a district resident.

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).

     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).  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).

     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 this case, petitioner has failed to rebut the presumption that Dustin’s residency is with her in the Gates-Chili Central School District.  In an “affidavit of natural parent” and an “affidavit of district resident in custodial relationship” submitted in September 2006, petitioner and Dustin’s great grandmother state that petitioner will provide Dustin with $50 per week in financial support, that Dustin will visit his mother on weekends and that control of Dustin will return to petitioner in June 2007.  They also state that both or either of them should be contacted in the event of an emergency or disciplinary action or in the event consent is needed for activities or release of records.

     In her one and a half page petition, petitioner alleges that her grandmother is supporting Dustin, provides him with food, shelter and clothing and exercises control over his activities and behavior.  She also alleges that she has surrendered parental control over Dustin to her grandmother.  Nothing in the petition, however, establishes a change in circumstance from the time of the original submissions to the district.  Rather, petitioner’s unsubstantiated allegations merely suggest a belated attempt to establish a transfer of custody after respondent denied Dustin’s admission to its schools.  Therefore, based upon the record before me, I find that petitioner has failed to rebut the presumption that Dustin’s residence remains with her in the Gates-Chili Central School District.  I cannot conclude, therefore, that respondent acted arbitrarily or capriciously in determining that Dustin is not a district resident.

THE APPEAL IS DISMISSED.

END OF FILE