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Decision No. 15,090

Appeal of CAROL M. HAUK, on behalf of ALYSA BRENHOCH, from action of the Board of Education of the Rush-Henrietta Central School District regarding residency.


Decision No. 15,090


(July 23, 2004)


DesMarteau & Beale, attorneys for respondent, George DesMarteau, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Rush-Henrietta Central School District ("respondent") that her step-granddaughter, Alysa, is not a district resident.  The appeal must be dismissed.

Petitioner resides within respondent"s district.  Alysa and her mother moved in with petitioner in August 2003, and Alysa began attending respondent"s elementary school in September.  In November 2003, Alysa"s mother moved into an apartment outside of the district.  By letter dated December 5, 2003, respondent"s Director of Student Management and School Safety asked petitioner and Alysa"s mother to complete Custodial and Parental Affidavits.  Based upon the information contained in the affidavits, respondent determined that Alysa was not a district resident.  This appeal ensued.  Petitioner"s request for interim relief was denied on January 29, 2004.

Petitioner claims that she provides all of Alysa"s food, shelter and clothing, and exercises control over Alysa"s activities and behavior.  She also maintains that Alysa"s mother is emotionally and financially unable to care for her at this time.  Petitioner alleges she has applied to be Alysa"s guardian.

Respondent asserts that Alysa"s living arrangement with petitioner is temporary and would terminate if Alysa"s mother were to relocate to respondent"s district.  Respondent also claims that petitioner has provided no documentary evidence to support her allegations.  Finally, respondent maintains that the petition fails to comply with the notice provisions of "275.11 of the Commissioner"s regulations.

The appeal must be dismissed because petitioner failed to serve a notice of petition on respondent.  It is the notice of petition that alerts a party to the fact that he or she is required to appear in the appeal, and to answer the objections contained in the petition (8 NYCRR "275.11; Appeal of Khalid, 40 Ed Dept Rep 621, Decision No. 14,570; Appeal of Heller, 38 id. 335, Decision No. 14,048; Application of the Bd. of Educ. of the Ardsley Union Free School Dist., 38 id. 221, Decision No. 14,019).  A petition that does not contain the language required by "275.11 is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Khalid, supra).

Aside from the fatally defective notice of petition, the appeal must also be dismissed on the merits.  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 Scott, 43 Ed Dept Rep ___, Decision No. 15,024; Appeal of Maxwell, 42 id. 134, Decision No. 14,799; Appeal of Donohue, 41 id. 26, Decision No. 14,601).  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 Alysa"s mother has permanently transferred custody to her.  In the residency affidavits submitted to respondent, Alysa"s mother states that Alysa"s living arrangement with petitioner is "semi-permanent/indefinite," depending upon whether or not she can move back into the district.  Petitioner also alleges she has applied for guardianship of Alysa, but no documents in the record support this claim.  Under these circumstances, I find that petitioner has failed to rebut the presumption that Alysa"s residence is that of her mother and has failed to demonstrate that respondent"s determination was arbitrary, capricious or unreasonable (see, Appeal of Scott, supra; Appeal of Gratton, supra).  Accordingly, I find no basis to disturb respondent"s determination that Alysa is not a district resident.

While the appeal must be dismissed for the above reason, I note that petitioner and Alysa retain the right to reapply for admission at any time and present any new information for respondent"s consideration (Appeal of Vinci, 40 Ed Dept Rep 505, Decision No. 14,539; Appeal of D.F. , 39 id. 106, Decision No. 14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180).