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Decision No. 15,230

Appeal of MERCIA DESROCHES, on behalf of CHRISTOPHER DUSSECK, from action of the Board of the Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15,230

(May 12, 2005)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that her nephew, Christopher Dusseck, is not a district resident. The appeal must be dismissed.

On October 4, 2004, petitioner, a district resident, requested Christopher's admission to respondent's schools. Prior to that time, Christopher lived with his mother, petitioner's sister, in Florida and attended high school there. Christopher's mother obtained employment in Haiti, withdrew Christopher from his Florida school on October 8, 2004, and sent him to live with petitioner beginning October 10, 2004. On October 13, 2004, the administrative assistant to the superintendent denied Christopher admission, and petitioner requested a hearing.

Respondent's administrative review officer conducted a hearing on October 14, 2004. Petitioner was present and offered additional information. The transcript of that hearing indicates that Christopher was expected to live with petitioner for one year, at which time his mother's employment would terminate and she would return to Florida. The transcript also indicates that Christopher's mother would continue financial support for him, in the amount of $600.00 per month. Based upon this information, the administrative review officer issued a final denial on October 25, 2004. This appeal ensued. Petitioner's application for interim relief was denied on November 15, 2004.

Petitioner argues that Christopher should be allowed to attend respondent's schools because his mother was unable to take him to Haiti with her, and she has not yet found a suitable place to live. She further argues that living in Haiti would be unsafe for Christopher.

Respondent maintains that Christopher is not entitled to attend its schools because the purported transfer of custody and control to petitioner is neither total nor permanent.

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 117, 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 for the convenience of the family or to take advantage of the schools of the district, the child has not established residence (Appeal of Gratton, 43 Ed Dept Rep 72, 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).

I agree that the purported transfer of Christopher's custody and control to petitioner was neither total nor permanent. It clearly was intended to continue only as long as Christopher's mother remains in Haiti, and during that time his mother will be providing substantial support for him. Since petitioner has not established a total and permanent transfer of custody, I do not find respondent's determination to be arbitrary, capricious or unreasonable.