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Decision No. 14,865

Appeal of LAURIE HUTCHINSON, on behalf of her daughter LIZABETH, from action of the Board of Education of the Brockport Central School District regarding residency.



(April 25, 2003)


Harris Beach, LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel 

MILLS, Commissioner.--Petitioner challenges a determination by the Board of Education of the Brockport Central School District ("respondent") that her daughter, Lizabeth, is not a district resident.  The appeal must be dismissed.

Petitioner and Lizabeth resided within respondent's district until they moved to Utah in September 1999.  Lizabeth was unhappy in Utah and decided to return to respondent's district to complete high school. Petitioner remained in Utah.

In August 2002, petitioner sought to enroll Lizabeth in respondent's schools.  Petitioner provided respondent with affidavits concerning her daughter's living arrangements with petitioner's friend in respondent's district, including an affidavit transferring custody of Lizabeth to her friend for educational and medical purposes.

By letter dated August 20, 2002, respondent's designee for residency determinations advised petitioner's friend  that Lizabeth could not attend respondent"s schools because she was not a district resident.  This appeal ensued. Petitioner's request for interim relief was denied on October 15, 2002.

Petitioner argues that it would be in Lizabeth's best interest to attend school in respondent's district.  However, petitioner concedes that she resides in Utah and will provide financial support for Lizabeth to reside with her friend within the district.  She contends that she did not relinquish total custody and control over Lizabeth because of child support and medical issues.    

Respondent asserts that petitioner is not a district resident and has not sufficiently transferred care, custody and control of Lizabeth to a district resident. Respondent further argues that petitioner seeks to establish Lizabeth'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 Vazquez, 42 Ed Dept Rep    , Decision No. 14,841; Appeal of L.W., 41 id.   , Decision No. 14,717; Appeal of Malek, 41 id.    , Decision No. 14,697).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Vazquez, supra; Appeal of Malek, supra; Appeal of Donohue, 41 Ed Dept Rep    ___, Decision No. 14,601).  This presumption can be rebutted where it is shown that total custody and control are relinquished to someone residing within the district (Appeal of Maxwell, 42 Ed Dept Rep ___, Decision No. 14,799; Appeal of Epps, 39 id. 778, 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 Cuesta, 42 Ed Dept Rep    , Decision No. 14,755; Appeal of Marbury, 41 id.   , Decision No. 14,634).

In this case, petitioner acknowledges that she continues to provide financial support for her daughter and has not made a total transfer of custody and control to someone residing within the district. In any event, it appears that the sole reason Lizabeth resides with petitioner's friend is to attend school in respondent"s district.  As discussed above, residence is not established in such circumstances.  Thus, respondent"s determination was neither arbitrary nor capricious and will not be overturned.