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Decision No. 14,539

Appeal of LINDA and CHRISTOPHER VINCI, on behalf of SUZANNE VINCI, from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 14,539

(February 22, 2001)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioners, who are the mother and brother of Suzanne Vinci, challenge a determination by the Board of Education of the Pine Bush Central School District ("respondent") that Suzanne is not a district resident. The appeal must be dismissed.

Suzanne resided with her mother ("Ms. Vinci") in the Pine Bush Central School District from 1992 until 1999. Ms. Vinci then moved to Rochester, New York to care for her ailing mother. Suzanne lived with her mother and grandmother in Rochester from July 1, 1999 until some point in the summer of 2000. Apparently she was unhappy there and decided to return to Pine Bush for her senior year of high school.

On August 18, 2000, Richard Reich, respondent’s designee for residency determinations, conducted a residency hearing. Ms. Vinci, her friend Janet Hunt and Mr. Reich’s assistant attended. Ms. Vinci filled out an affidavit stating that Suzanne would live with Janet Hunt and her husband at 25 Fortune Road East in Middletown, within the Pine Bush district, until she graduated. She stated that Mrs. Hunt would serve as Suzanne’s guardian but Ms. Vinci would share responsibility for matters relating to Suzanne’s education and medical care. Mrs. Hunt completed a similar affidavit.

By letter dated August 18, 2000, Mr. Reich advised Ms. Vinci of his determination that Suzanne was not a district resident and could not attend the Pine Bush schools. He noted that the district does not permit nonresident tuition-paying students. Mr. Reich stated that the information provided at the hearing and in the affidavits indicated that Ms. Vinci had not made a total transfer of custody and control over Suzanne to Mrs. Hunt.

Ms. Vinci apparently asked Mr. Reich to reconsider his determination. She submitted a lease indicating that she and Suzanne would rent space within the Hunt home at 25 Fortune Road East during the school year and documents showing that she had obtained insurance and cellular phone service listing the Fortune Road East address as her home address. Mr. Reich responded by letter dated September 1, 2000, in which he stated that he could not change his determination based on these documents. He noted that the leased property was a one-family house where the Hunt family resided. He stated that the apparent reason for entering into the lease was to enable Suzanne to attend school in the district.

Ms. Vinci then sent Mr. Reich copies of an affidavit in which she stated she was transferring custody and control of Suzanne to her son, petitioner Christopher Vinci. The affidavit stated that Christopher, then 21 years old, was a district resident and would assume responsibility for Suzanne’s health, education, welfare and finances. Christopher signed a similar affidavit stating that he accepted custody of Suzanne. By letter dated September 8, 2000, Mr. Reich advised Ms. Vinci that he had reviewed the new affidavits, noted that they were inconsistent with the other information Ms. Vinci had provided and stated that his determination that Suzanne was not a district resident remained in effect. Mr. Reich subsequently notified Ms. Vinci that he had scheduled another residency hearing for September 14, 2000.

Following the hearing, Mr. Reich again concluded that Suzanne was not a district resident. In a letter to Ms. Vinci dated September 14, 2000, he found that there had not been a complete transfer of care, custody and control from Ms. Vinci to Christopher, and that Suzanne sought to live with Christopher in Pine Bush so she could attend school there. This appeal ensued. Petitioners’ request for interim relief was denied on October 10, 2000. Respondent’s counsel subsequently notified my Office of Counsel that appeal papers mailed to Christopher Vinci at the address listed on his affidavit were returned as undeliverable and that the address appeared to be commercial property rather than a residence.

Petitioners claim that respondent’s determination that Suzanne is not a district resident is erroneous. They allege that Suzanne has resided with her brother, an independent adult, within the Pine Bush school district since the affidavits transferring custody to him were executed. They assert that Suzanne, who is not attending school, is working to earn money to cover her expenses and that Ms. Vinci provides no support. Petitioners further contend that Christopher has assumed full responsibility for Suzanne. They also argue that Mr. Reich misled Ms. Vinci into making statements that he relied on in denying residency.

Respondent asserts that Ms. Vinci is not a district resident and has not transferred care, custody and control of Suzanne to a district resident. Respondent alleges that Christopher Vinci also is not a district resident and argues that petitioners seek to establish Suzanne’s residency solely to enable her to complete high school in respondent’s district.

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 Lapidus, 40 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 Santoianni, 40 Ed Dept Rep ___, Decision No. 14,470; Appeal of White, 39 id. 103, Decision No. 14,186; Appeal of Bogetti, 38 id. 199, Decision No. 14,014). This 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, 39 Ed Dept Rep ___, Decision No. 14,377). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court, 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).

Here, petitioners have failed to rebut the presumption that Suzanne resides with her mother because they have not established that her permanent residence is with her brother or that Ms. Vinci has made a total transfer of custody and control to him. The only record evidence on this point consists of two short affidavits executed by petitioners. The credibility of these documents is called into question by the evidence of Ms. Vinci’s prior attempts to establish a residence for Suzanne in respondent’s district. Moreover, it is unclear whether Christopher Vinci in fact resides within the district. In any event, it appears that the sole reason for Suzanne to reside with her brother is to attend school in respondent’s district. As discussed above, residence is not established in such circumstances. In sum, respondent’s determination was neither arbitrary nor capricious and will not be overturned.

While the appeal must be dismissed for the above reasons, I note that petitioners and Suzanne retain the right to reapply to the district for admission at any time (Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180; Appeal of Smith, 39 id. 28, Decision No. 14,163) to present any new information for respondent's consideration.