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Decision No. 14,377

Appeal of CATHERINE EPPS, on behalf of KHATIM ABDUL-KHALIQ, from action of the Board of Education of the Valhalla Union Free School District regarding residency.

Decision No. 14,377

(May 26, 2000)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Valhalla Union Free School District ("respondent") that her son, Khatim Abdul-Khaliq, is not a district resident. The appeal must be dismissed.

Petitioner resides at 560 Warburton Avenue in Yonkers, within the Yonkers City School District. She asserts that in June 1999 Khatim ran away from home and stayed with his uncle, Michael Epps, at 71 Ethelton Road in Valhalla, within respondent’s school district. He stayed there from June through August 1999. Although the record is not clear, Khatim apparently returned to his mother’s home and school in Yonkers in September 1999. After turning sixteen years old sometime in the fall of 1999, Khatim expressed an interest in living with his uncle. Consequently, on December 10, 1999, petitioner attempted to register Khatim in respondent’s schools. Petitioner was given Affidavits of Responsibility for her and Mr. Epps to complete.

On December 15, Dr. Thomas M. Kelly, respondent’s superintendent and authorized designee for residency determinations, informed petitioner that Khatim was not a district resident and would not be permitted to enroll in school. By letter dated December 17, 1999, petitioner provided additional information to Dr. Kelly, who nevertheless affirmed his decision on January 11, 2000. This appeal ensued. Petitioner’s request for interim relief was denied on March 28, 2000.

Respondent asserts that petitioner has failed to meet her burden of establishing the facts upon which she seeks relief, or of demonstrating a clear legal right to the relief requested. Respondent’s primary contention is that she resides outside the district and has not transferred custody and control to a district resident.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Burdi, 39 Ed Dept Rep 176, Decision No. 14,206; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926).

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 id. 117, Decision No. 13,675); Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). 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 within the district (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Rosati, 38 id. 216, Decision No. 14,018). Where the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of Revella, 37 id. 65, Decision No. 13,805). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Pernell, 30 Ed Dept Rep 380, Decision No. 12,502; Appeal of Tunstall, 27 id. 144, Decision No. 11,899), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Garretson, 31 Ed Dept Rep 542, Decision No. 12,729; Appeal of Pernell, supra).

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 Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of a Student with a Disability, 37 id. 29, Decision No. 13,796; Appeal of Brutcher, 33 id. 56, Decision No. 12,973). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Menci, supra) or the hardships of single parenting (Appeal of McMullan, supra. In such cases, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Juarez, supra; Appeal of Lebron, 35 Ed Dept Rep 359, Decision No. 13,570). Nor is it necessarily determinative that the child continues to be covered by the parent’s health insurance where there is no indication that providing such coverage requires a financial contribution or involves control over medical care (Appeal of Burdi, supra).

In this case, petitioner stated in her Affidavit of Responsibility that Khatim "prefers the stable family environment which his uncle and aunt [] have provided him;" that "the current living and academic environment are not comparable to the safety and security which a two parent household provides;" and that "Khatim will benefit emotionally and educationally from the care of his aunt and uncle." Petitioner also indicated that she would continue to provide clothing and medical, dental, life, health, and auto insurance for Khatim. Mr. Epps stated on his affidavit that Khatim had been living with him since November 15, 1999 "to provide a stable environment to benefit Khatim both socially and emotionally to alleviate the situation he now encounters in the Yonkers school system." Both affidavits provided that Khatim would visit his mother on weekends, holidays and vacations and that Khatim would reside with his uncle until his eighteenth birthday or June 2001.

In her December 17 letter, petitioner stated that the transfer of guardianship was already in effect because Khatim was already residing with his uncle, that she was unable to provide him with a stable family environment because she worked two jobs and was a divorced single parent, and that she would continue to cover Khatim’s medical insurance because he had a pre-existing condition which would not be covered by his uncle’s insurance. She also indicated that she would be involved in Khatim’s religious upbringing because Mr. Epps did not share his faith.

Dr. Kelly avers that his review of the affidavits indicated that the transfer of guardianship was temporary and for the primary purpose of permitting Khatim to attend school in respondent’s district, and that petitioner intended to continue providing substantial support for Khatim. Dr. Kelly also states that the fact that petitioner, rather than Mr. Epps, attempted to register Khatim also indicates the degree to which petitioner continues to exercise care, custody and control of her son. His review of petitioner’s December 17 supplemental information did not alter his conclusion that "the transfer of guardianship appears [] temporary and for the primary purpose of attendance at school."

Petitioner has failed to demonstrate that respondent acted arbitrarily or capriciously in determining that Khatim is not a district resident. Petitioner has not shown that the transfer of custody was complete or permanent (Appeal of Noble-Silverberg, 38 Ed Dept Rep 213, Decision No. 14,017). While not dispositive, the fact that this appeal was brought by petitioner rather than Mr. Epps further suggests that petitioner continues to exercise parental control over Khatim (Appeal of S.V., 38 id. 478, Decision No. 14,075). Accordingly, respondent’s determination will not be set aside.