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Decision No. 14,755

Appeal of KAROLL CUESTA, on behalf of ANDRES F. ROCHA, from action of the Board of Education of the Ossining Union Free School District regarding residency.

Decision No. 14,755

(July 24, 2002)

Ingerman, Smith, L.L.P., attorneys for respondent, Deborah Richardson DeCuevas, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Ossining Union Free School District ("respondent") that Andres F. Rocha is not a district resident. The appeal must be dismissed.

On December 27, 2001, petitioner, a resident of respondent"s district, sought the admission of her cousin, Andres F. Rocha, to the district"s schools. Andres" parents reside in Colombia, South America. As part of her application, petitioner submitted a "Custodian Affidavit" stating that Andres had come to live with her on December 16, 2001. In explanation of the reason why he had come to live with her, petitioner affirmed that she "wants to offer him a (sic) education in the U.S.A. in order that if he likes it his parents will attempt for student visa to continue in U.S.A." Andres" father also submitted a "Parent Affidavit" stating that the reason for transferring custody to petitioner is because "that way [petitioner] will have time to indicate [Andres] how could he have a better education." The affidavit also stated, "[s]tudent wants to try school system that way in a future approach (sic) a student visa" and "he will like to stay to get a better education."

By letter dated January 11, 2002, respondent"s superintendent of schools denied petitioner"s request based on his determination that the sole reason for the proposed transfer of custody and attempt to establish residency in respondent"s school district was to attend the district"s schools. This appeal ensued. Petitioner"s request for interim relief was denied on February 1, 2002.

In her petition and supporting documents, petitioner indicates that Andres was placed into her care by his parents with the hope that she could provide him with a better education in a safer environment. Petitioner refers to the political situation in Andres" home country and asserts that those circumstances are preventing Andres from achievement of his "dream of becoming an educated man."

The petition must be dismissed. 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 L.W., 41 Ed Dept Rep ___, Decision No. 14,717; Appeal of Malek, 41 id. ___, Decision No. 14,697; Appeal of Thomas, 41 id. ___, Decision No. 14,622). A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of L.W., supra; Appeal of Malek, supra; Appeal of Donohue, 41 Ed Dept Rep _, Decision No. 14,601). While this presumption may be rebutted upon a determination that there has been a total and presumably permanent transfer of custody and control to someone residing within the district (Appeal of L.W., supra; Appeal of Maleck, supra; Appel of Donohue, supra), it is well settled that a student has not established residence when he or she is residing with someone other than a parent solely to take advantage of the schools in the district (Appeal of Malek, supra; Appeal of Marburg, 41 Ed Dept Rep ___, Decision No. 14,634; Appeal of Mendoza, 39 id. 74, Decision No. 14,178).

Accordingly, because the petition herein and the affidavits submitted by petitioner and Andres" father indicate that the custody arrangement was solely for the purpose of facilitating the student"s attendance in respondent"s schools, the residency requirement has not been satisfied. In view of the foregoing, there is no basis upon which to set aside respondent"s determination.