Appeal of MICHAEL MENDOZA, on behalf of KENNY VARGAS, from action of the Board of Education of the Hicksville Union Free School District regarding residency.

Decision No. 15,698

(December 14, 2007)

Guercio & Guercio, attorneys for respondent, Christopher J. Guercio, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hicksville Union Free School District (“respondent”) that his nephew, Kenny Vargas, is not a district resident.  The appeal must be dismissed.

Prior to August 2007, Kenny lived with his parents in Bogota, Colombia.  In August 2007, Kenny came to live with petitioner in Hicksville.  On August 27, 2007, petitioner attempted to register Kenny in respondent’s district.  On September 6, 2007, respondent’s Director of Special Education and Pupil Personnel Services (“Director”) and respondent’s attorney held a residency hearing.

By letter dated September 7, 2007, the Director issued her decision finding that Kenny was not entitled to attend school in the district on the grounds that petitioner had failed to rebut the presumption that Kenny’s residence was with his parents in Bogota, Columbia.  This appeal ensued.

Petitioner contends that Kenny, a United States citizen, intends to reside permanently with him and that he is Kenny’s primary caretaker.

Respondent states that Kenny’s residence remains in Bogota, Columbia with his parents.  The district contends that there has not been a total and permanent transfer of custody and control from Kenny’s parents to petitioner and that the sole reason Kenny is residing with petitioner is to take advantage of respondent’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 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).

In this appeal, petitioner has not offered any documents to establish that Kenny’s parents have given him full custody and control of Kenny.  According to the transcript of the residency hearing, Kenny’s parents provided petitioner with a power of attorney “to act as tutors of our minor son.”  While petitioner has interpreted this language as authorizing him to make educational and medical decisions on the student’s behalf, the quoted language does not clearly indicate the parents’ intent with regard to the scope of petitioner’s authority or the care, custody and control of Kenny.  Additionally, at the residency hearing, petitioner stated that he would not be seeking legal guardianship of Kenny.

The record further indicates that Kenny’s parents will provide some financial support to petitioner as needed for Kenny’s care.  Also, petitioner states that Kenny began living with him because “he decided to travel and move to the U.S.A. because he felt he would receive a better education.”

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).  Upon my examination of the record, I find that petitioner has failed to rebut the presumption that the student’s residence is with his parents in Columbia.

THE APPEAL IS DISMISSED.

END OF FILE