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Decision No. 13,882

Appeal of DEBORAH WEBSTER RIVKIN, on behalf of DAWN AQUILONE, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 13,882

(March 9, 1998)

Douglas E. Libby, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that Dawn Aquilone is not a district resident entitled to attend its schools tuition-free. The appeal must be dismissed.

Petitioner resides at 955 Hancock Avenue, within respondent's district. Petitioner is the sister of Dawn Aquilone's mother, Rose Digilio. Dawn previously attended respondent's high school, and the factual background of this matter may be found in Appeal of Digilio, 37 Ed Dept Rep 25 (July 24, 1997). During the 1996-1997 school year, Dawn attended respondent's high school pursuant to a stay granted September 27, 1996, but was ultimately found not to be a resident of the district by a decision dated July 24, 1997.

Late in September 1997, Dawn's mother and petitioner again sought to register her as a student. In the course of the registration process, Dawn's mother and aunt signed various documents in which they claim that her mother had surrendered full custody and control to her aunt, and that Dawn resided with her aunt at 955 Hancock Avenue. Dawn was denied admission on September 29, 1997. A hearing was subsequently conducted on October 17, 1997, by respondent's designee for residency determinations Ann-Marie F. Hartline, Esq. After hearing testimony from Ms. Digilio, Ms. Rivkin, and others, and reviewing numerous documents, the hearing officer on November 6, 1997, again concluded that Dawn was not entitled to attend the public schools of the district, because she is not a legal resident. This appeal was commenced on November 24, 1997, and a request for a stay was denied on December 5, 1997.

Respondent served its answer on December 15, 1997; petitioner has not served a reply or any other papers since that time.

It is clear in this matter that the student's mother, stepfather, and natural father all reside outside the district. Under the circumstances, the student is presumed to reside with her parent or parents, outside the district. Petitioner relies on a purported transfer of custody from the child's mother to her to overcome this presumption. Although it is not entirely clear from the record, I am assuming that Dawn does actually stay with her aunt within the district.

Although petitioner claims that a full relinquishment and transfer of custody has occurred, the facts demonstrate otherwise. The hearing officer's report indicates that Ms. Digilio testified "that just because she has given her sister guardianship of Dawn it does not mean that she is removing herself from anything to do with Dawn." Ms. Digilio further indicated that Dawn is covered by medical insurance provided by her natural father, and that Ms. Digilio gives money to petitioner for Dawn's support when she receives support from the natural father. Petitioner testified that she had received approximately $300 from Ms. Digilio between January 1997 and the date of the hearing (October 17, 1997).

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 Simond, 36 Ed Dept Rep 117; Appeal of Brutcher, 33 id. 56; Appeal of Curtin, 27 id. 446). It is presumed that a child resides with his or her parents or legal guardian (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted in a proper case (Appeal of McMullan, 29 Ed Dept Rep 310). To rebut the presumption, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Garretson, 31 Ed Dept Rep 542). Where the parent continues to support the child, the presumption is not rebutted and the child's legal residence remains with the parent. Moreover, where 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 Ritter, 31 Ed Dept Rep 24).

The record before me indicates that there has been no complete, permanent transfer of custody. There is evidence that Dawn's parents continue to provide some measure of financial support, and that her mother intends to retain some degree of custody or control in her life. Where the facts of the situation contradict the claim of a complete transfer of custody, the presumption of residence with the student's parents is not rebutted (Appeal of Galay, et al., 37 Ed Dept Rep 128; Appeal of Simond, supra, at p.121). On this record, I cannot find that respondent acted arbitrarily by determining that Dawn is not a resident of the district.