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Decision No. 15,248

Appeal of VIRGINIA MELGAR, on behalf of her granddaughter NANCY DIANA BONILLA, from action of the Board of Education of the Islip Union Free School District regarding residency.

Decision No. 15,248

(July 15, 2005)

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Islip Union Free School District ("respondent") that her granddaughter, Nancy, is not a district resident. The appeal must be dismissed.

On September 2004, petitioner, a district resident, requested that Nancy be enrolled in respondent's schools. Nancy's parents reside in El Salvador. By letter dated October 12, 2004, respondent's superintendent denied petitioner's request , concluding that Nancy was living with petitioner in order to attend respondent's schools. This appeal ensued. Petitioner's request for interim relief was denied on November 8, 2004.

Petitioner contends that Nancy intends to live with her permanently and that her parents have requested an immigrant visa to move to the United States, but that there is an estimated three-year wait for the visa. Petitioner asserts that she has control over Nancy's activities and behavior and that her son, Nancy's uncle, is providing most of Nancy's support including food, shelter and clothing. Petitioner requests a determination that Nancy is a district resident entitled to attend respondent's schools without payment of tuition.

Respondent asserts that petitioner has not rebutted the presumption that Nancy 's residence is with her parents in El Salvador.

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). Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T. , 43 id. 63, Decision No. 14,917).

As evidence of her custody of Nancy, petitioner submitted a document in Spanish, and an English translation, that purportedly gives petitioner the authority to act on behalf of Nancy's parents in legal matters and to "execute the personal care" of Nancy. This "General Judicial Power with Special Clause" does not transfer legal custody to petitioner, but merely gives petitioner authority to act on the parents' behalf. Petitioner's statements in her petition reveal that Nancy is residing with her temporarily until her parents can emigrate from El Salvador. Additionally, petitioner argues the importance of education to Nancy's future and how delaying her entry into North American schools will adversely impact that future.

Respondent submitted a "Custodian's Affidavit" completed by petitioner that states that Nancy is living with her until Nancy's parents arrive in the United States. Respondent also submitted a "Parent's Affidavit" completed by Nancy's mother which states that Nancy is living with petitioner because her parents "wish the best education for her." The documents also indicate that Nancy's parents will continue to provide "some percentage" of her support.

Under these circumstances, I find that petitioner has not rebutted the presumption that Nancy's residence remains with her parents in El Salvador. Accordingly, respondent's determination was not arbitrary or capricious and will not be set aside.