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Decision No. 15,024

Appeal of LAURIE A. SCOTT, on behalf of MELISSA L. CHARA, from action of the Board of Education of the Pine Bush Central School District regarding residency.



(February 5, 2004)


Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Felice A. Bowen, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Pine Bush Central School District ("respondent") that her sister, Melissa L. Chara, is not a district resident.  The appeal must be dismissed.

On August 20, 2003, petitioner applied to have Melissa admitted to respondent"s schools.  After conducting a residency hearing pursuant to "100.2(y) of the Commissioner"s regulations, respondent"s designee determined that Melissa is not a district resident because her parents have not surrendered total custody and control to petitioner.  Melissa"s mother was notified of this determination by letter dated August 20, 2003.  This appeal ensued.  Petitioner"s request for interim relief was denied on September 15, 2003.

Petitioner, who lives within respondent"s district, claims that Melissa has been living with her since the beginning of June 2003 because of "stresses caused onto Melissa by the neighborhood in which she lived."  She contends that Melissa"s parents have surrendered parental control to her, that she and her husband are supporting Melissa and that they are "in the process of filing for full custody" of Melissa.  She contends, therefore, that Melissa is a district resident and requests a determination that Melissa is entitled to attend respondent"s schools tuition-free.

Respondent contends that Melissa is not a district resident because, among other things, her parents indicate that they will continue to provide her with food, clothing and other necessities, and will continue to assume full responsibility for her education and medical care.

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 Humphrey, 43 Ed Dept Rep    , Decision No. 14,940; Appeal of Thomas, 41 id. 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, Decision No. 14,603).  A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of Humphrey, supra; Appeal of Thomas, supra; Appeal of Santana, 40 Ed Dept Rep 57, Decision No. 14,420). 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 Maxwell, 42 Ed Dept Rep 134, Decision No. 14,799; Appeal of Donohue, 41 id. 26, Decision No. 14,601; Appeal of Juarez, 39 id. 184, Decision No. 14,208).  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 Gratton, 43 Ed Dept Rep ___, Decision No. 14,922; Appeal of Pierre, 40 id. 538, Decision No. 14,551; Appeal of Mendoza, 39 id. 74, Decision No. 14,178).  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 Melissa"s parents have permanently transferred custody to her.  To the contrary, in affidavits submitted at the residency hearing, Melissa"s parents state that they will provide Melissa with food, clothing and other necessities and assume full responsibility for her education and medical care.  Further, it appears from the affidavit submitted by petitioner that the primary reason Melissa is living with her is to "finish her education."  Although petitioner states that she is "in the process of filing" for legal custody, the record does not indicate that she has so filed or that a court has awarded her custody of Melissa.  Under these circumstances, I find that petitioner has failed to rebut the presumption that Melissa"s residence is that of her parents and has failed to demonstrate that respondent"s determination was arbitrary, capricious or unreasonable (see, Appeal of Gratton, supra).  Accordingly, I find no basis to disturb respondent"s determination that Melissa is not a district resident.