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Decision No. 15,277

Appeal of PETER WHITE and LEE FOX, on behalf of ERIC WHITE, from action of the Board of Education of the Pittsford Central School District regarding residency.

Decision No. 15,277

(August 12, 2005

Jeffrey Wicks, PLLC, attorney for petitioners

Harris Beach LLP, attorneys for respondent, Laura M. Purcell, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Pittsford Central School District ("respondent") that their nephew, Eric White, is not a district resident. The appeal must be dismissed.

On March 19, 2005, petitioners attempted to register Eric in respondent's district for the 2005-2006 school year. Petitioners submitted a custodial affidavit and an affidavit by Eric's parents. The parents' affidavit indicated that Eric's father is employed by Chevron Texaco and, at the time, was assigned to work in Kuwait. Eric and his mother also lived there. The affidavit further stated that, because of safety concerns in Kuwait, Eric's father anticipated being transferred to Nigeria or Angola before or during the 2005-2006 school year. The affidavit stated that Eric's parents had "investigated school opportunities for Eric in Nigeria and Angola," but that neither had a suitable school for their son. It further stated that, for safety reasons, Eric's father would not allow Eric to remain in Kuwait with his mother.

In the custodial affidavit submitted to the district, petitioners state that they will provide Eric with housing and miscellaneous expenses, but that his parents will continue to provide financial support for everything else. Petitioners indicated that the arrangement was temporary and that the parents were expected to "take back" custody and control.

By letter dated March 29, 2005, respondent's designee for residency determinations notified petitioners that Eric was not entitled to enroll in the district because he is not a resident. This appeal ensued.

Petitioners contend that Eric is entitled to enroll in respondent's school district as a resident. Respondent asserts that its determination that Eric is not a district resident is in all respects proper. As a procedural matter, respondent also claims that petitioners' verified reply does not comply with the Commissioner's regulations and should not be considered.

I will first address respondent's procedural claim. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).Petitioners allege for the first time in their reply prior residency determinations by respondent which, petitioners assert, compel respondent to permit Eric's enrollment. While I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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).

Generally, if parents continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (seeCatlin 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 Nelson, 44 id. 20, Decision No. 15,082). Moreover, 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).

Upon my review of the record, I find that there has been no total, permanent transfer of custody. The custodial affidavit states that the transfer of custody is not permanent and that Eric's parents intend to take back custody and control of him. It also indicates that they will continue to provide petitioners with financial support for Eric. Moreover, while Eric's parents indicate that the current situation in Kuwait is dangerous and that Eric could not remain there with his mother when his father is transferred, they also state that the reason he will not be with them in Angola and Nigeria is because they are not satisfied with the quality of the schools in those locations. In view of these factors, I find no basis to disturb respondent's determination that Eric is not a district resident.