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Decision No. 15,053

Appeal of D.H.C., on behalf of her son J.H., from action of the Board of Education of the Jefferson Central School District regarding residency.



(May 26, 2004)


Hogan & Sarzynski, LLP, attorneys for respondent, John P. Lynch, Esq., of counsel  

MILLS,Commissioner.--Petitioner challenges the determination of the Board of Education of the Jefferson Central School District ("respondent") that her son, J.H., is not a district resident.  The appeal must be dismissed.

In July 2003, J.H. began living with family friends, Mr. and Mrs. S., residents of respondent"s district.  Before that, he lived with his mother outside the district.  In July, petitioner sought to enroll J.H. in respondent"s high school.  By letter dated August 6, 2003, petitioner informed respondent that her son was residing with his "guardians", Mr. and Mrs. S.  The letter also stated that although Mr. and Mrs. S. would "care for him regarding health, welfare and education," petitioner required notification of her son"s progress in school, achievements and any "extreme situations."  By a second letter dated August 6, 2003, petitioner advised respondent that she wanted to be notified of any life-threatening situations regarding her son and that all medical bills should be sent to her.

Respondent alleges that on or about August 22, 2003 it notified petitioner in writing that J.H. was not a district resident.  According to respondent, a postal notice had been left in petitioner"s mailbox but she did not pick up the letter before the first day of school.

On September 3, 2003 J.H. attempted to begin tenth grade in respondent"s high school.  Respondent"s superintendent interviewed J.H. and Mrs. S. concerning his living arrangements.  Based on these conversations and the previous correspondence, the superintendent determined that J.H. was not a resident and denied him admission.  By two letters dated September 3, 2003, petitioner appealed the superintendent"s decision to respondent.  Thereafter, a meeting was held on September 10, 2003, which was attended by petitioner, a representative from an advocate"s office, the superintendent, the district clerk and Mrs. S.

By letter dated September 10, 2003, the superintendent notified petitioner of respondent"s determination of non-residency.  This appeal ensued.  Petitioner"s request for interim relief was denied on October 3, 2003.

Petitioner alleges that J.H. lives with Mr. and Mrs. S. due to the hardships of single parenthood, exacerbated by a recent accident which has left her disabled.  She also alleges that her son intended to drop out of school until he visited with Mr. and Mrs. S. over the summer and asked to remain with them.  She states that she has surrendered parental control, that Mr. and Mrs. S. exercise control over J.H."s activities and behavior and that they provide his food, shelter and clothing.

Respondent maintains that petitioner has not established that she has relinquished custody and control of her son and in fact alleges that during the September 10, 2003 meeting petitioner indicated that she had no intention of giving up custody.  Respondent argues that petitioner asked to be notified of her son"s progress in school and requested that all medical bills be sent to her.  Respondent also claims that J.H. and Mrs. S. told the superintendent that petitioner sends money for his food and clothing.  Additionally, respondent claims, and petitioner admits, that she maintains health insurance coverage for her son.

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 Gratton, 43 Ed Dept Rep ___, Decision No. 14,922; 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 guardian (Appeal of Gratton, supra; 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, 41 Ed Dept Rep 26, Decision No. 14,601; Appeal of Burdi, 39 id. 176, Decision No. 14,206).  Moreover, where the sole reason the child is residing with someone other than the parent is to attend the schools of the district, the child has not established residence (Appeal of Maxwell, 42 Ed Dept Rep 134, 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).  Based on the record before me, I cannot find that respondent"s residency determination is arbitrary and capricious.  Rather, I find that petitioner has failed to establish that she has permanently transferred custody and control of J.H. to Mr. and Mrs. S.  To the contrary, the petitioner states that she, "take[s] an active interest in the health, welfare, and education of [her] son."  She wants to be notified of his progress in school and of any "extreme situations" that might develop.  Petitioner asked to receive his medical bills and, while not dispositive, provides her son with medical insurance.  Thus, petitioner has agreed only to allow Mr. and Mrs. S. to make immediate and short-term decisions regarding J.H."s education.

Further, in her September 3, 2003 letters to the superintendent and respondent, petitioner indicated that she is willing "to compromise in any way that will allow J.H. to attend school in Jefferson."  The Commissioner has repeatedly held that residency is not established where custody is transferred so that the student in question may attend the local schools (Appeal of A.F., supra; Appeal of White, 39 id. 103, Decision No. 14,186).

On these facts, I find respondent"s determination to be neither arbitrary or capricious.