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Decision No. 15,282

Appeal of SHARON DOMINGUEZ, on behalf of JULIAN SIAKA BASSIE, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15,282

(August 16, 2005)

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

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

Prior to the 2004-2005 school year, Julian attended respondent's schools. In June 2004, Julian's mother and stepfather sold their home in respondent's district and relocated to Florida with Julian.

On September 8, 2004, petitioner, a district resident, requested Julian's admission to respondent's Elmont Memorial High School. Petitioner represented that Julian had left his mother's residence in Florida because he could not adjust to the school there and was having problems with his stepfather. According to the registration form, the arrangement was temporary and Julian's parents would provide 100% of his support. An affidavit completed by Julian's mother indicated that she did not relinquish custody and control.

By letter dated September 13, 2004, respondent's administrative assistant to the superintendent notified petitioner that Julian was not entitled to attend respondent's schools due to "Parental Residence Out-of-District & Custody Concerns." By letter dated Sep tember 21, 2004, petitioner appealed this decision. On September 21, 2004, a hearing was held to determine Julian's residency. By letter dated October 6, 2004, respondent's administrative review officer issued a determination that Julian was not a resident due to his mother 's failure to relinquish care, custody and control to petitioner. This appeal ensued. Petitioner's request for interim relief was denied on October 25, 2004.

Petitioner contends that Julian had difficulty adjusting to school in Florida and also had a strained relationship with his stepfather. She alleges that for these reasons the family decided she should have custody of Julian so he can complete his high school education in the district. She also claims that she is supporting Julian, that she exercises control over his activities and behavior, and that his parents have surrendered parental control to her.

Respondent contends that the administrative review officer reasonably concluded that the family had not met their burden of demonstrating a total or permanent relinquishment of custody and control of Julian.

Respondent also asserts that the petition is not properly verified as required by �275.5 of the Commissioner's regulations. However, the petition submitted to my Office of Counsel contained the requisite verification. Although petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and my Office of Counsel received a verified petition (Appeal of M.M., 42 Ed Dept Rep 323, Decision No. 14,870; Appeal of McSween, 42 id. 59, Decision No. 14,775; Appeals of Campbell and Coleman, et al., 41 id. 207, Decision No. 14,665).

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).

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).

A residency determination will not be set aside unless it is arb itrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief

(8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

The record reflects that the purported transfer of Julian's custody and control to petitioner is neither total nor permanent. The parental affidavit submitted by Julian's mother indicates that she did not relinquish custody and control of Julian, that his parents would continue to provide his support and that the situation is temporary. At the residency hearing, petitioner indicated that Julian's family would provide 100% of his support. Petitioner also testified that Julian's mother planned to be involved in decisions concerning all out-of-school matters, such as health care. Petitioner's residency affidavit notes that Julian will live with her for two years, until he is ready for college or graduates from high school. These facts show that there has not been a total and permanent transfer of custody to petitioner.

After this appeal was commenced, petitioner submitted a petition for her appointment as guardian for Julian, dated October 21, 2004. However, there is no evidence in the record of the final disposition of the petition. Julian's parents did not sign the petition, and the affidavit does not explain why his parents should no longer be his guardians. Moreover, evidence of a court order or letters of guardianship is not determinative of residency if there has not been a total transfer of custody and control ( Appeal of D.K. and R.S., Jr., 44 Ed Dept Rep 23, Decision No. 15,083; Appeal of D.E., 43 id. 39, Decision No. 14,908). Even if custody orders or letters of guardianship are issued by a court, the presumption of a child's residence with the custodian or guardian can be rebutted if it can be shown that the guardianship or transfer of custody was established merely for the purpose of circumventing a district' s nonresident policy (Appeal of D.K. and R.S., Jr., 44 Ed Dept Rep 23, Decision No. 15,083; Appeal of D.E., 43 id. 39, Decision No. 14,908).

On the record before me, I cannot find respondent's determination to be arbitrary, capricious or unreasonable (Appeal of Steele, 43 Ed Dept Rep 512, Decision No. 15,068; Appeal of Mario D., 41 id. 24, Decision No. 14,600; Appeal of Digilio, 37 id. 25, Decision No. 13,795).