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Decision No. 15,247

Appeal of GLENDA RUDOLPH, on behalf of her niece KISHINA A. DAVIS, from action of the Board of Education of the Rush-Henrietta Central School District regarding residency.

Decision No. 15,247

(July 15, 2005)

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 niece, Kishina A. Davis, is not a district resident. The appeal must be dismissed.

On or about September 8, 2004, respondent denied petitioner's request for Kishina's admission to its schools. This appeal ensued. Petitioner's request for interim relief was denied on September 24, 2004.

Petitioner contends that Kishina has lived with her in respondent's district since August 2003 because of family problems. Both Kishina's mother and father reside, apparently separately, in a neighboring district. Petitioner also contends that Kishina will live with her for two more years. Petitioner states that Kishina visits her father periodically, and that he provides food, shelter and clothing for Kishina. Petitioner further states that Kishina's parents have not surrendered parental control.

Respondent asserts that Kishina is not a district resident because her parents provide financial support and have not surrendered control. Respondent maintains that Kishina only stayed with petitioner on a temporary basis.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

The presumption that a child resides with his or her parents or legal guardians can 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 I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930; Appeal of L.P., 43 id. 12, Decision No. 14,901). 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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

Based upon petitioner's own admissions, Kishina's parents have not relinquished custody and control. Therefore, she has failed to rebut the presumption that Kishina's residence is with her parents, outside of the district.