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Decision No. 16,088

Appeal of MARTHA ARREGUIN, on behalf of LUIS MEDINA, from action of the Board of Education of the Hicksville Union Free School District regarding residency.

Decision No. 16,088

(July 10, 2010)

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

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hicksville Union Free School District (“respondent”) that her brother, Luis, is not a district resident.  The appeal must be dismissed.

Petitioner is a resident of respondent’s district and is the sister of Luis.  Prior to his move to Hicksville in July 2009, Luis resided with his parents in Mexico.  Petitioner claims that Luis’s father became ill, his parents were no longer able to adequately support him, and the decision was made to have Luis reside with petitioner.

On June 15, 2009, petitioner’s parents signed a document stating that they consented to Louis’s travel outside the Republic of Mexico to the United States for the purpose of “carry[ing] out all the necessary paperwork related to his education and requirements mandated by any school, including taking part in all type[s] of exams.”[1] The document states that petitioner will have legal custody of Luis “during his period outside the Republic of Mexico.”

Petitioner enrolled Luis as a student in respondent’s district in July 2009.  On September 10, 2009, a residency hearing was held, and Luis was determined not to be a legal resident of respondent’s school district.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 23, 2009.

Petitioner asserts that her parents have transferred custody of Luis to herself, that she retains complete control over Luis and as such, he is a bonafide resident of respondent’s district.

Respondent argues that the sole reason Luis is residing with petitioner is to take advantage of respondent’s schools, and that petitioner has failed to demonstrate a complete and total transfer of custody and control of Luis from his parents in Mexico to petitioner.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).

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 Jeudy, 46 Ed Dept Rep 512, Decision No. 15,579).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Moyer, 46 Ed Dept Rep 290, Decision No. 15,511; Appeal of Santana, 46 id. 255, Decision No. 15,499; Appeal of Werner, 45 id. 14, Decision No. 15,244).  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeal of Proctor, 46 id. 575, Decision No. 15,599).   

However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293) 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 Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

In this case, there is no evidence in the record that Luis’s parents transferred total and complete permanent custody of Luis to petitioner.  The original document signed by Luis’s mother did not grant total and complete custody to petitioner, but only transferred custody for the period during which Luis was out of the Republic of Mexico.  Additionally, this document specified that he would be traveling outside the Republic of Mexico for the express purpose of completing his education.  Further, petitioner’s own testimony at the district’s hearing demonstrates that Luis’s intent in traveling to the United States was to take advantage of the educational system.  Petitioner also states that her parents would retain final decisionmaking over Luis in certain circumstances.  As such, there is insufficient evidence that a total transfer of care, custody and control to petitioner was intended. 

Accordingly, based upon the record before me, I cannot conclude that respondent acted arbitrarily or capriciously in determining that Luis is not a district resident. 

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Luis’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] The original document is in Spanish, and the translation of such was provided by petitioner as an exhibit to her petition.