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Decision No. 15,095

Appeal of JOSE and NORMA CHORRO, on behalf of MARCELLA PAOLA CUELLAR CORTEZ, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.



August 13, 2004



Douglas E. Libby, Esq., attorney for respondent


MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that Marcella Paola Cuellar Cortez ("Marcella") is not a district resident.  The appeal must be dismissed.

  Marcella came to stay with petitioners to take an English course in November and December of 2003 while on break from her school in El Salvador.  Marcella"s mother, who is petitioner Jose Chorro"s cousin, and sister reside in El Salvador, and Marcella"s father is deceased. 

In February 2004, petitioners applied for Marcella"s admission to respondent"s schools.  By letter dated February 5, 2004, a district administrator denied Marcella admission.  Petitioners appealed the determination to an administrative review officer.  By letter dated March 5, 2004, the review officer denied Marcella"s admission because her mother was not a district resident.  This appeal ensued, and petitioners" request for interim relief was denied on May 20, 2004.

Petitioners contend that Marcella resides with them and will continue to reside with them until she finishes college.  They assert that Marcella wishes to complete her high school and college education in the United States.  Petitioners request a determination that Marcella is a district resident and entitled to attend respondent"s schools without payment of tuition.

Respondent contends that Marcella is not a district resident because there has been no transfer of custody and control to petitioners.

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 a Student with a Disability, 43 Ed Dept Rep ___, Decision No. 14,926; Appeal of Gimenez, 42 id.  176, Decision No. 14,812; Appeal of Curran, 42 id. 49, Decision No. 14,772).  A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of a Student with a Disability, supra; Appeal of Hutchinson, 42 Ed Dept Rep 310, Decision No. 14,865).  This presumption can be rebutted where it is shown that the parents have relinquished total custody and control to someone residing in the district (Appeal of a Student with a Disability, supra; Appeal of Maxwell, 42 Ed Dept Rep 134, Decision No. 14,799). 

While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child"s permanent residence, and that the individual exercising control has full authority and responsibility with respect to the child"s support and custody (Appeal of a Student with a Disability, supra; Appeal of Hutchinson, supra).  In addition, 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 a Student with Disability, supra; Appeal of Hutchinson, supra; Appeal of Maxwell, supra).

In this case, petitioners have failed to rebut the presumption that Marcella"s residency is with her mother in El Salvador.  Petitioners did not submit any evidence in support of their contentions.  Respondent submitted the documents petitioners supplied to them during the administrative review of the residency determination, which included Marcella"s birth certificate, her father"s death certificate and a "Power of Attorney" executed by Marcella"s mother.  The "Power of Attorney" gives petitioners the authority to act on Marcella"s mother"s behalf in "all legal, medical and educational matters," but that document alone is not sufficient to transfer permanent custody and control of Marcella. 

Respondent also submitted the transcript of the review hearing during which petitioners admitted that they would consult with Marcella"s mother on issues related to her education and health.  Petitioners also admitted that Marcella"s mother provides some financial support.  Finally, petitioners admitted that Marcella is living with them in order to attend school.  Petitioners, therefore, have not established that Marcella"s mother has transferred custody and control.

Under these circumstances, I find that petitioners have not rebutted the presumption that Marcella"s residence remains with her mother.  Accordingly, I find no basis to disturb respondent"s determination that Marcella is not a district resident.