Decision No. 18,074
Appeal of VLADIMIR SUPRUNCHIK, on behalf of his child, from action of the Board of Education of the Whitesboro Central School District regarding residency.
Decision No. 18,074
(January 24, 2022)
David G. Goldbas, Esq., attorney for petitioner
Ferrara Fiorenza, P.C., attorneys for respondent, Catherine E.M. Muskin, Esq., of counsel
ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Whitesboro Central School District (“respondent”) that his child (the “student”) is not a district resident. The appeal must be dismissed.
The student previously resided with petitioner within respondent’s district and attended its schools. In fall 2021, a letter sent to petitioner at his purported in-district address was returned as undeliverable. Respondent’s Director of Pupil Personnel Services (“PPS director”) then contacted the guidance counselor, who indicated that several pieces of mail had been returned to the district as undeliverable.
Petitioner thereafter submitted a custody agreement to the district, which purported to transfer custody of the student to his cousin. The record reflects that the cousin resides within respondent’s district. Upon review of the agreement, the PPS director requested that petitioner and the cousin complete affidavits identifying their relationship to the student. Petitioner and his family returned these affidavits on September 22, 2021.
In a letter to petitioner dated September 24, 2021, the PPS director determined that the student was not a district resident. The PPS director reasoned that the affidavits did not reflect a complete transfer of custody and control to the cousin; as such, the student’s residence remained with petitioner, who resided outside of respondent’s district. This appeal ensued.
Petitioner contends that he effected a complete transfer of custody and control of the student to the cousin. Petitioner further suggests that the student is temporarily absent from his home in the district, which is “under construction.” Petitioner requests a determination that the student is a district resident.
Respondent argues that petitioner has failed to demonstrate a complete transfer of custody and control from him to the cousin.
Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 ). “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 ; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).
The presumption that a child resides with his or her parent or legal guardian can be rebutted upon a determination that the parent or guardian has executed a total, and presumably permanent, transfer of custody and control of the child to a third party (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). Although a formal transfer of custody and control through a guardianship or Family Court proceeding is not required to establish a child’s residency for purposes of Education Law § 3202, the evidence must demonstrate that the child’s permanent residence is within the district and that the individual exercising custody and control of the child has full authority and responsibility with respect to the child’s support and care (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).
Generally, if a child’s parent or legal guardian continues to provide financial support for the child’s room, board, clothing, and other necessities, the parent or guardian has not relinquished custody and control (see Catlin v Sobol, 77 NY2d 552 ; Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318). Similarly, where the child’s parent or legal guardian retains decision-making authority over important matters such as the child’s medical care or education, a total transfer of custody and control has not occurred (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin, 77 NY2d at 562).
A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863). 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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
Here, petitioner has failed to meet his burden of proving a total transfer of custody and control to the cousin. The record reflects that petitioner and his spouse retain significant legal authority over the student by, for example, retaining responsibility for his medical costs and contributing $500 per month for his “room and board” expenses. Additionally, petitioner and his spouse share decision-making authority with the cousin for making educational decisions, authorizing medical treatment, determining whether to release records, and purchasing clothing and other necessities. As such, petitioners have not demonstrated a complete transfer of custody and control to the cousin (see Appeal of D.M. and J.D., 61 Ed Dept Rep, Decision No. 18,031; Appeals of P.B., 59 id., Decision No. 17,698; Appeals of T.M., 58 id., Decision No. 17,496).
Additionally, petitioner has not met his burden of proving that the student is temporarily absent from respondent’s district. Petitioner has not produced any proof that the family’s in-district home is “under construction;” that the student maintains ties to the district; or that he is making an effort to return (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).
While the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on the student’s behalf at any time, should circumstances change, and to present any additional information for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 It is unclear when petitioner moved outside of respondent’s district; in the petition, he indicates that the student has resided with the cousin since July 1, 2021.
 Petitioner asserts in the petition, contrary to his claim in the affidavit, that the student “buys his own clothing.” Even if I credited this assertion, it would not affect the outcome of this appeal.
 I note that this claim of temporary absence is inconsistent with petitioner’s assertion that he has transferred custody and control of the student to the cousin.