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Decision No. 15,290

Appeal of AUGUSTINA OTISI, on behalf of her nephew MICHAEL TOCHUKWU BRIGGS, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 15, 290

(August 18, 2005)

Ingerman Smith, L.L.P., attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the White Plains City School District ("respondent") that her nephew, Michael, is not a district resident. The appeal must be dismissed.

Petitioner is a district resident and Michael has lived with her for almost four years. On March 4, 2005, Michael's mother requested Michael's admission to respondent's pre-kindergarten program. By letter dated April 29, 2005, respondent's assistant superintendent for pupil services denied the request based on his determination that petitioner's custody of Michael was only temporary. This appeal ensued. Petitioner's request for interim relief was denied on June 9, 2005.

Petitioner contends that Michael has lived with her since he was one month old because his mother is unable to provide him with a stable home. She claims that Michael's mother is separated from his father, that his father has little contact with him, and that his mother attends nursing school full-time and is unable to care for him. Petitioner maintains that she provides Michael with food, shelter and clothing. She also asserts that the district misinterpreted information provided on a "Care, Custody and Control Application" which was completed by Michael's mother.

Respondent claims that petitioner's custody arrangement with Michael's mother is only temporary, as evidenced by the statement on the "Agreement to Temporarily Change Custody," which states that Michael will stay with his aunt through 2008. Respondent maintains that the mother also lists herself as the person who makes medical decisions for Michael. Respondent contends that the mother lists Michael's father as residing with her in the Bronx. Respondent also maintains that Michael's mother completed the application for school, not petitioner, and listed schooling as a reason for giving care and custody of her son to petitioner.

Preliminarily, I must address a procedural matter. 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). Therefore, 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 or legal guardians 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). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

It does not appear that the sole reason for the purported transfer of custody has been for educational purposes. Petitioner states that the application for care and custody reflects that her sister needs to complete her schooling, not for her son to be schooled in respondent's district. The record supports this contention as the mother is enrolled in nursing school, and petitioner includes statements from others that her nephew has lived with her since he was an infant, long before his education was an issue.

However, petitioner has not established that Michael's parents have relinquished custody and control. Michael's mother completed the application for Michael to attend school in respondent's district. She admits to having control over medical decisions for her son, and indicates that the transfer of custody to petitioner is temporary, until 2008. Accordingly, respondent's determination was not arbitrary or capricious and will not be set aside.

While the appeal must be dismissed, I note that petitioner has the right to reapply to the district for admission of her nephew at any time should circumstances change (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of Holder, 44 id. 32, Decision No. 15,088).