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Decision No. 13,584

Appeal of GUYLENE BRUNOT, on behalf of CECILE and LOUISA PAUL, from action of the Sewanhaka Central High School District regarding residency.

Decision No. 13,584

(March 23, 1996)

Douglas E. Libby, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Sewanhaka Central High School District ("respondent") to exclude her nieces from district schools on the basis of residency. The appeal must be dismissed.

Petitioner alleges that her nieces, Cecile and Louisa Paul, reside with her within respondent school district and are therefore entitled to attend respondent's schools. Cecile and Louisa, age 18, are American-born United States citizens who lived with their mother, Madeleine Brunot Frederique, in Haiti for most of their lives. Petitioner alleges that in August 1995, Frederique decided to move to the United States with her children. Petitioner contends that Frederique sent the children to stay with her, because she was not prepared to move at that time and wanted her daughters to be here in time to start school. On September 12, 1995, petitioner submitted registration materials requesting admission for Cecile and Louisa to respondent school district. By letter dated September 13, 1995, respondent denied the request on the basis of parental residence out of the district. Petitioner appealed to the Board of Education without relief. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on January 8, 1996.

Petitioner argues that the children are district residents. She contends that they live with her, that she is financially supporting them, that she exercises control over their behavior and activities, and that their mother has surrendered parental control to her. However, petitioner also admits that the living arrangement is temporary, that the reason for the arrangement is to enable the children to graduate from an American high school, and that the children's mother does provide some financial support. A notarized statement from Frederique confirms that "Cecile and Louisa . . . moved to USA (New York) this summer to complete their high school, be familiar to the educative system of their country before entering the College. . . . These statements and arrangements are true and stay permanent as long as I cannot be with my children."

Respondent first contends this appeal should be dismissed as untimely. Section 275.16 of the Commissioner's regulations requires that an appeal be instituted within 30 days after the making of the decision or the performance of the act of which the petitioner complains, provided that the Commissioner may excuse a delay in commencing an appeal for good cause. Although respondent's decision is dated October 10, 1995, more than 30 days before the commencement of this appeal, petitioner's nieces retain the right to reapply for admission to the district at any time, and then to appeal from any denial of admission (Appeal of Blagrove, 32 Ed Dept Rep 629; Appeal of Colas, 32 id. 128). Therefore, petitioner's delay in commencing this appeal is excused.

Respondent also contends that petitioner's nieces are nonresidents because their mother is a nonresident, there has not been a total transfer of custody and control, and the children are staying in the district for the purpose of attending district 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 only to district residents (Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Warburton, 35 id. 74).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Reilly, 35 Ed Dept Rep ___, Decision No. 13,550 dated February 5, 1996; Appeal of Allen, supra). That presumption can be rebutted where it is shown that the parents have relinquished total custody and control, in which case the child's residence becomes that of the person assuming parental control (Appeal of Gorrasi, 35 Ed Dept Rep 68; Appeal of Brutcher, 33 id. 56). Formal guardianship proceedings are not necessary to establish custody and control for purposes of residency (Appeal of Britton, 33 Ed Dept Rep 120; Appeal of Pernell, 30 id. 380). However, with or without letters of guardianship, when the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Brutcher, 33 Ed Dept Rep 56; Appeal of Ritter, 31 id. 24; Appeal of Pinto, 30 id. 374; Appeal of McMullan, 29 id. 310).

In this case, petitioner admits, and Frederique's statement confirms, that the children's living arrangement is temporary. More importantly, it is clear that the children are staying with petitioner for the purpose of attending respondent's schools. Although petitioner argues that the intent was not to arrange for Cecile and Louisa to attend any particular school district, the record indicates that they are staying with petitioner to attend her school district tuition free. Therefore, the presumption of parental residence has not been rebutted.

At this time, the parental residence of Cecile and Louisa is in Haiti. For the purposes of Education Law '3202, a person can only have one legal residence (Appeal of Love, 35 Ed Dept Rep 71; Appeal of Britton, 33 id. 198). A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Love, supra; Appeal of Gibson, 31 id. 284). Therefore, although Cecile and Louisa may not intend to return to Haiti, their residence remains there until their mother changes her residence. Accordingly, respondent's determination will not be set aside.