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Decision No. 14,420

Appeal of MATILDE SANTANA, on behalf of ERICA POLANCO, from action of the Board of Education of the Bedford Central School District regarding residency.

Decision No. 14,420

(August 4, 2000)

Ingerman Smith, L.L. P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bedford Central School District ("respondent") that her cousin's daughter, Erica Polanco, is not a district resident. The appeal must be dismissed.

On February 28, 2000, petitioner and her cousin Julie Polanco, who resides outside the district in West Haverstraw, attempted to enroll Ms. Polanco's daughter Erica in respondent's Fox Lane High School. Erica had been living with petitioner for approximately three weeks. In a parental affidavit, Ms. Polanco stated that they were trying Fox Lane after previous enrollments at private schools in the Dominican Republic and Florida were unsuccessful. She granted temporary custody to petitioner until the end of the school year, and stated that Erica would return home to West Haverstraw on weekends. In a custodial affidavit, petitioner agreed to care for Erica so that Erica could continue the school year and receive therapy. Petitioner also stated that Erica's parents would furnish money monthly for food and expenses.

On February 29, 2000, Dr. Bruce Dennis, respondent's superintendent, determined that, based on these affidavits and conversations with Ms. Polanco and petitioner, Erica was not eligible to attend school in respondent's district. He determined that the transfer of custody was solely for the purpose of permitting Erica to attend Fox Lane High School, with no permanent transfer of guardianship. This appeal ensued. Petitioner’s request for interim relief was denied on March 28, 2000.

Petitioner asserts in the petition that Erica lives with her seven days a week and is in her complete care. Petitioner claims that she is responsible for Erica's medical, educational and other needs and that Ms. Polanco has given her legal guardianship. She requests a determination that Erica is a resident of respondent's district and entitled to attend its schools on a tuition-free basis.

Respondent asserts that the petition fails to state a claim upon which relief may be granted and that Erica is living with petitioner to take advantage of the schools of the district and thus is not entitled to attend its schools as a resident on a tuition-free basis.

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 Lapidus, 39 Ed Dept Rep ___, Decision No. 14,408; Appeal of Burdi, 39 id. 176, Decision No. 14,206; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

A child's residence is presumed to be that of his or her parents (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). 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 Epps, 40 Ed Dept Rep ___, Decision No. 14,377; Appeal of Young and Billings, 39 id. 158, Decision No. 14,201). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Epps, supra; Appeal of Tunstall, 27 Ed Dept Rep 144, Decision No. 11,899), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individual exercising control has full authority and responsibility with respect to the child's support and custody (Appeal of Rivera, 38 Ed Dept Rep 119, Decision No. 13,997; Appeal of Garretson, 31 id. 542, Decision No. 12,729).

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 Lapidus, supra; 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). 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 Rivera, 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).

In this case, petitioner has failed to demonstrate that respondent acted arbitrarily or capriciously in determining that Erica is not a district resident. Her statements in the petition are inconsistent with those in the earlier affidavits, yet are not supported by any further evidence. Pointedly, there is no further affidavit from Ms. Polanco or any other evidence that the transfer of custody was complete or permanent (Appeal of Noble-Silverberg, 38 Ed Dept Rep 213, Decision No. 14,017) or that Ms. Polanco is no longer providing financial support. Accordingly, respondent’s determination will not be set aside.