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Decision No. 14,803

Appeal of T.B. and N.B., on behalf of their nephew J.S., from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 14,803

(August 28, 2002)

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

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Pine Bush Central School District ("respondent") that their nephew, J.S., is not a district resident. The appeal must be dismissed.

Petitioners reside within respondent's district. In July 2001, J.S. left his parents' home in Oklahoma and began living with petitioners. His parents' submitted an August 21, 2001 affidavit to respondent's district stating that they were making arrangements to move from Oklahoma, and that they were giving petitioners temporary custody of J.S. until they arrived in New York so he would not have to change schools midterm. By letter dated August 23, 2001, respondent's designee for residency determinations advised J.S.'s parents that J.S. was not a district resident.

By letter dated August 30, 2001, J.S.'s mother requested reconsideration and submitted a second affidavit asserting that J.S. needed to live with petitioners for the foreseeable future because his family situation in Oklahoma was dysfunctional. By letter dated September 5, 2001, respondent's designee for residency determinations again advised J.S.'s mother that J.S. was not a district resident. This appeal ensued. Petitioners' request for interim relief was granted on October 17, 2001.

With their reply affidavit, petitioners submitted a copy of a December 4, 2001 Order of an Oklahoma District Court appointing them as guardians of J.S. In their affidavit, petitioners recount the details of how the family environment in Oklahoma would expose J.S. to physical and emotional harm. Following its voluntary reconsideration with this current information, respondent advised petitioners by letter dated February 8, 2002, that it considered J.S. to be 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 to students whose parents or legal guardians reside within the district (Appeal of Thomas, 41 Ed Dept Rep ___, Decision No. 14,622; Appeal of Oliver, 41 id. ___, Decision No. 14,603; Appeal of Davis, 39 id. 181, Decision No. 14,207). For purposes of Education Law "3202(1), residence is based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Silvestro, 40 id. 259, Decision No. 14,476; Appeal of Gentile, 39 id. 23, Decision No. 14,161). A child's residence is presumed to be that of his or her parents or guardian (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Santana, 40 id. 57, Decision No. 14,420; Appeal of Williams, 39 id. 73, Decision No. 14,177). 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 in the district (Appeal of Donohue, supra; Appeal of Santana, supra; Appeal of Mendoza, 39 Ed Dept Rep 74, Decision No. 14,178).

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 Pierre, 40 Ed Dept Rep 538, Decision No. 14,551; Appeal of Cron, 38 id. 149, Decision No. 14,005). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Donohue, supra;Appeal of Lapidus, 40 Ed Dept Rep 21, Decision No. 14,408; Appeal of Juarez, 39 id. 184, Decision No. 14,208). In such cases, the mere fact that a child continues tomaintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child"s residence (Appeal of Donohue, supra; Appeal of Lapidus, supra; Appeal of Juarez, supra).

The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Tobias, 41 Ed Dept Rep ___, Decision No. 14,612; Appeal of Cox, 41 id. ___, Decision No. 14,609; Appeal of Correale, 40 id. 15, Decision No. 14,405). Based upon further information submitted by petitioners, respondent has voluntarily determined that J.S. is a district resident. Since the residency issue has been resolved, the appeal is dismissed as moot.