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Decision No. 13,669

Appeal of PATRICIA BLACKWELL, on behalf of MARQUITA ROMAN, from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.

Decision No. 13,669

(August 29, 1996)

Hodgson Russ Andrews Woods & Goodyear LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's determination that her niece, Marquita Roman, is not a resident of the Cleveland Hill Union Free School District. The appeal must be dismissed.

Petitioner, a resident of respondent's school district, alleges that Marquita and her mother, Virginia Beasley, moved in with petitioner and her family when Marquita was an infant. She further alleges that Marquita, now sixteen, remained with the Blackwells when Ms. Beasley moved to her current address within the Buffalo City School District. Petitioner refers to the arrangement as an "informal guardianship agreement" and alleges that in April 1996, Ms. Beasley applied to Surrogate's Court for transfer of guardianship to her, which was in process at the time of the petition. Petitioner contends that Marquita's mother is unable to care for her and that it was in Marquita's best interest to remain with the Blackwells. Petitioner alleges that she, her husband, and Marquita's mother share Marquita's expenses. She also contends that although Ms. Beasley has surrendered parental control of Marquita to her, they "communicate about decisions."

By letter dated February 8, 1996, respondent informed Ms. Beasley that Marquita could not attend its schools because she was a nonresident student. After a hearing on February 21, 1996, respondent concluded that Marquita was not a resident and would be excluded from the district's schools as of March 18, 1996. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on April 26, 1996.

Respondent contends that Marquita is a nonresident because her mother, now living outside of the district, has not surrendered full custody and control of her daughter to petitioner or anyone else residing in the district. Respondent based its decision on information presented by petitioner and her sister indicating that Marquita's mother shares in her expenses, participates in decisions regarding Marquita, and claims her as a dependent. Furthermore, respondent contends that evidence supplied by an investigator indicates that Marquita actually lives with her mother within the Buffalo City School District and that Ms. Beasley purportedly told a Buffalo police officer that she and her daughter resided in Buffalo. Petitioner points out a number of discrepancies in the investigator's report and denies the alleged statement to a police officer.

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 305; Appeal of Allen, supra). That presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing within the district (Appeal of Gorrasi, 35 Ed Dept Rep 68; Appeal of Brutcher, 33 id. 56). In this case, Marquita's mother admits that she shares decisions concerning Marquita and helps with her expenses. Therefore, the presumption of residence within the parent's school district has not been rebutted. Accordingly, respondent's determination was not arbitrary, capricious, nor unreasonable, and will not be set aside.