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Decision No. 14,919

Appeal of B.H. and B.H., on behalf of J.H., from action of the Board of Education of the Bedford Central School District regarding residency.


Decision No. 14,919


(August 12, 2003)


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


CATE, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Bedford Central School District ("respondent") that their nephew, J.H., is not a district resident.  The appeal must be dismissed.

J.H. had attended school in respondent"s district during the 2000-2001 school year.  At some point in that school year, J.H. and his mother moved to North Carolina.  In November 2002, petitioners sought to re-enroll J.H. in respondent"s Fox Lane Middle School.  They submitted a written statement from J.H."s mother purporting to give legal guardianship of J.H. to petitioners, her sisters, "so that they may make any legal or medical decisions for him in my absence."  Petitioners also submitted a custodial affidavit in which they stated that J.H. lived with them for "personal reasons" and that the duration of the arrangement was indefinite.

On December 11, 2002, petitioners met with respondent"s superintendent to discuss J.H."s enrollment.  At this meeting, the superintendent also spoke with J.H."s mother via telephone.

By letter dated December 11, 2002, the superintendent notified J.H."s mother that he had determined J.H. was not a district resident.  He summarized the information J.H."s mother had provided by telephone, noting that she indicated she was providing financial support for J.H.  The superintendent also indicated that J.H."s mother said J.H. was unhappy and depressed in North Carolina and that she had arranged for him to be hospitalized in New York.  The superintendent found that no transfer of custody had occurred because J.H."s mother retained legal custody of J.H. and continued to provide financial support for him.  Petitioners commenced this appeal.  Their request for interim relief was granted on January 16, 2003.

Petitioners maintain that J.H. has resided within the district since November 23, 2002, and will reside with them indefinitely.  They also assert that they have physical control of J.H. and will make all decisions regarding his welfare.  They state that they exercise full custodial rights over him, except that J.H."s mother continues to provide health insurance coverage.  Petitioners also allege that they provide J.H. with food, clothing and shelter.  Petitioners request a determination that J.H. is a district resident.

Respondent alleges that J.H. is not a district resident because J.H."s mother has not relinquished full custody of J.H. to petitioners.  Respondent also asserts that J.H."s mother continues to contribute financial support to J.H.  Respondent emphasizes that the written statement from J.H."s mother makes it clear that petitioners were to make legal or medical decisions for J.H. only in her absence.  Respondent contends that this alleged transfer of custody is an attempt to permit J.H. to attend its schools, which he prefers to the school he attended in North Carolina.

Education Law "3202(1) provides in pertinent part:

A person who is over the age of 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 Maxwell, 42 Ed Dept Rep ___, Decision No. 14,799; Appeal of J.M., 42 id. ___, Decision No. 14,783).  Residency for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district, and an intent to reside in the district (Appeal of Burnett, 42 Ed Dept Rep ___, Decision No. 14,825).  A child"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Gimenez, 42 Ed Dept Rep ___, Decision No. 14,812). 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 M.S., 42 Ed Dept Rep ___, Decision No. 14,767). Moreover, where the sole reason that 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 T.B. and N.B., 42 Ed Dept Rep ___, Decision No. 14,803; Appeal of Maxwell, supra).

     In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Vazquez, 42 Ed Dept Rep ___, Decision No. 14,841).

     Petitioners have failed to meet their burden.  J.H."s mother"s notarized statement purports to give legal guardianship to petitioners to make legal and medical decisions for J.H. only in her absence.  Instead of substantiating petitioners" claim of guardianship, this statement supports respondent"s claim that the custody transfer is of a limited, temporary nature.  Additionally, J.H."s mother admitted to the superintendent that she would provide for his financial support and health care.  She also told the superintendent that J.H. was more comfortable at respondent"s school and was unhappy and depressed in North Carolina.  These statements support respondent"s claim that J.H. is living in the district solely to take advantage of its schools.  Accordingly, I cannot conclude that respondent"s determination was arbitrary or capricious.