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Decision No. 14,922

Appeal of STEVEN and CHARLENE GRATTON, on behalf of NAKISHA L. DEBYAH, from action of the Board of Education of the Malone Central School District regarding residency.



(August 12, 2003)


Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, David W. Larrison, Esq., of counsel


Cate, Acting Commissioner.--Petitioners challenge the determination of the Board of Education of the Malone Central School District ("respondent") that their niece, Nakisha L. Debyah, is not a district resident.  The appeal must be dismissed.

On April 1, 2002, petitioners submitted a residency application to enroll Nakisha in respondent"s schools. Petitioners represented that, prior to March 21, 2003, Nakisha lived with her parents in Bombay, New York, within the Salmon River Central School District ("Salmon River").  Petitioners stated in their application that Nakisha came to live with them because she had been subjected to unspecified threats and harassment at school.  After Nakisha"s parents failed to receive a satisfactory response from Salmon River school officials, they decided to have Nakisha live with petitioners so that she could attend school in respondent"s district.  By decision dated April 2, 2003, respondent"s attendance officer informed Nakisha and her parents that he had determined that Nakisha was not a district resident.  The district agreed, however, to permit Nakisha to attend the district"s schools until the end of the 2002-2003 school year.  This appeal ensued.

Petitioners admit that Nakisha came to live with them because she experienced problems at school in Salmon River.  Petitioners further admit that Nakisha continues to maintain a close relationship with her parents, visiting them on weekends and vacations.  Although petitioners claim that they are fully supporting Nakisha financially and plan to claim her as a dependent on their income taxes, they admit that Nakisha"s parents have not legally surrendered parental control to them and that Nakisha is covered under her mother"s health insurance plan.  Petitioners nevertheless claim that Nakisha is a district resident and seek a determination that Nakisha is entitled to attend school in respondent"s district tuition free.  Respondent contends that it rationally determined that Nakisha is not 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 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, 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 72, 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 26, 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 Maxwell, 42 Ed Dept Rep    , Decision No. 14,799; Appeal of Pierre, 40 id. 538, Decision No. 14,551; Appeal of Cron, 38 id. 149, Decision No. 14,005).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of A.F., 41 Ed Dept Rep 115, Decision No. 14,633; Appeal of Karmin, 41 id. 72, Decision No. 14,618).  Petitioner has failed to establish that Nakisha"s parents have permanently transferred custody to petitioners.  To the contrary, the petition states that Nakisha"s parents "have not legally surrendered control" but have agreed to allow petitioners to "make decisions" and "set rules and guidelines."  Moreover, the record establishes that Nakisha continues to maintain a relationship with her parents and is living with petitioners to take advantage of respondent"s schools.  The Commissioner has repeatedly held that residency is not established where custody is transferred to take advantage of local schools (Appeal of A.F., supra; Appeal of White, 39 id. 103, Decision No. 14,186).