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Decision No. 14,183

Appeal of JOSE SAMUEL, on behalf of SAJAN ABRAHAM, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 14,183

(July 30, 1999)

Douglas E. Libby, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that Sajan Abraham is not a district resident. The appeal must be dismissed.

Sajan was born in India and came to the United States, along with his siblings, after his father died and Mathai Kutty and Saramma Mathai, his paternal aunt and uncle, adopted him. Apparently Sajan's adoptive parents first tried to enroll him in the district in 1995, but withdrew him after eight days. Sajan was then re-enrolled by his uncle, Kutty Ninan, a district resident, and attended respondent's school for the 1995-96 school year before moving to Colorado with his adoptive parents. Sajan attended school in Colorado for the next two years.

In July 1998, Sajan returned to New York State and moved in with petitioner. In August 1998, petitioner, a district resident who claims he is Sajan's uncle, tried to re-enroll him in respondent's schools. On the enrollment form petitioner stated that Sajan was living with him for "personal reasons" and Sajan "has more opportunities in New York". By letter dated August 31, 1998 an assistant to the superintendent notified petitioner that a determination had been made that Sajan was not a district resident. Mr. Ninan appealed that decision and a residency hearing was held on September 8, 1998. By letters dated September 16 and 29, 1999, petitioner was notified that Sajan would not be allowed to attend respondent's schools. This appeal ensued. Petitioner's request for interim relief was denied on October 7, 1998.

Petitioner contends that Sajan's adoptive parents have surrendered parental control because Mr. Kutty's business keeps him away from home and Sajan needs more parental guidance. He alleges that he has full custody and control over Sajan and supports him financially. Petitioner argues that Sajan would like to complete his education in respondent's schools because he is comfortable there and his friends and family attend the district's school.

Respondent argues that its decision was not arbitrary or capricious and contends that Sajan lives with petitioner solely to take advantage of respondent's schools. Respondent also contends that Mr. Ninan was inadvertently allowed to enroll Sajan previously because of an oversight.

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 Byrd, 38 Ed Dept Rep 561, Decision No. 14,093; Appeal of Revella, 37 id. 65, Decision No. 13,805; Appeal of Keenan, 36 id. 6, Decision No. 13,635). A child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 Ed Dept Rep 117, Decision No. 13,675; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). However, this presumption may be rebutted (Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465; Appeal of McMullan, 29 id. 310, Decision No. 12,304). To determine whether the presumption has been rebutted, 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 Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of Revella, supra; Appeal of Garretson, 31 Ed Dept Rep 542, Decision No. 12,729). However, when the sole reason a child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residency (Appeal of Brown, supra; Appeal of West, 36 Ed Dept Rep 76, Decision No. 13,662; Appeal of Brutcher, 33 id. 56, Decision No. 12,973).

On the record before me, I cannot find that there has been a total and permanent transfer of custody to petitioner. The petition lists Sajan's father's business and Sajan's wish to continue in respondent's schools as the reasons for Sajan's return to New York. In petitioner's affidavit, he states that Sajan will live with him until he graduates from high school, that Sajan wishes to be near his siblings in New York, and that Sajan will have better educational and career opportunities in New York. The affidavit of Sajan's father, reiterates these reasons. In a letter submitted at the residency hearing, Sajan's parents call petitioner Sajan's "local" guardian and state that his "guardianship" is a temporary solution to satisfy both business needs and Sajan's desire to return to respondent's schools.

Although the petition states that business needs caused Mr. Kutty to move to Colorado, testimony at the hearing indicated that Sajan's parents moved to Colorado for his mother's health. Furthermore, testimony revealed that they believed the schools in Colorado were inferior to respondent's.

The one reason articulated by all parties for Sajan's living arrangement is educational opportunities. The other stated reasons are vague, inconsistent and at times confusing. In sum, I cannot find that respondent's determination that Sajan is living with petitioner solely to take advantage of its schools is arbitrary or capricious. Accordingly, respondent's determination will not be set aside.