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Decision No. 15,393

Appeal of HAI CHING LIU, on behalf of his sons HAO WEN LIU and HAO YU LIU, from action of the Board of Education of the Pittsford Central School District regarding residency.

Decision No. 15,393

(March 30, 2006)

Chamberlain D'Amanada Oppenheimer & Greenfield LLP, attorneys for petitioner, Matthew J. Fusco, Esq., of counsel

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

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pittsford Central School District ("respondent") that his sons, Hao Wen and Hao Yu, are not district residents. The appeal must be dismissed.

Petitioner resides in Taipei City, Taiwan. Petitioner, his wife and two sons have United States resident alien cards and, according to petitioner, it is his intention to move his family to the United States. Petitioner's sister and her husband reside in the United States, in respondent's school district.

Petitioner and his wife own and operate a small restaurant in Taipei City requiring them to work between 12 and 15 hours a day, 6 days a week. Prior to his death in 2004, petitioner's father supervised Hao Wen and Hao Yu after school and assisted them with their homework. Petitioner asserts that since his father's death, Hao Wen and Hao Yu either " hang out" at the restaurant or on the streets nearby and are unable to participate in any after school activities.

On July 20, 2005, Hao Wen and Hao Yu came to live in respondent's school district with their aunt and uncle, who volunteered to care for the boys until their parents are able to sell their restaurant and emigrate to the United States. According to petitioner, when he and his wife do emigrate, it is expected that they will live in the same house as his sister and her husband.

On August 1, 2005, petitioner and his sister attempted to register Hao Wen and Hao Yu to attend respondent's schools. Petitioner submitted a natural parent affidavit and his sister submitted a resident custodial parent affidavit. By letter dated August 8, 2005, respondent's designee notified petitioner's sister and her husband that, based on the submitted affidavits, it appeared that Hao Wen and Hao Yu's living arrangement was primarily designed to "improve their education" and therefore, they were not entitled to attend respondent's schools. This appeal ensued. Petitioner's request for interim relief was denied on October 5, 2005.

Petitioner contends that Hao Wen and Hao Yu are district residents because he and his wife have relinquished total custody and control to his sister and her husband. Further, he alleges that Hao Wen and Hao Yu have established physical presence as inhabitants of respondent' s school district and they fully intend to continue residing in the district once their parents emigrate.

Respondent contends that petitioner has failed to demonstrate that Hao Wen and Hao Yu are district residents because the transfer of their custody and control to petitioner's sister and her husband is neither total nor permanent. Additionally, respondent asserts that the reason for the transfer in custody is to take advantage of respondent's schools.

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).

In an appeal to the Commissioner, a 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; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

I agree that the purported transfer of Hao Wen and Hao Yu's custody and control to petitioner's sister and her husband is not total or permanent. In their original affidavits, petitioner and his sister admit that petitioner did not permanently transfer custody and control of the boys to his sister and her husband. Subsequent affidavits prepared on August 23, 2005, do not state that there has been a total and permanent transfer of custody and control to the children's aunt and uncle. Further, any transfer of custody and control that does exist is clearly intended to continue only so long as Hao Wen and Hao Yus' parents remain in Taiwan.

Since petitioner has not established that there has been a total and permanent transfer of custody and control, I find that respondent's residency determination is not arbitrary, capricious or unreasonable.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of his children at any time should circumstances change (Appeal of Agee, 45 Ed Dept Rep ____, Decision No. 15,338; Appeal of Torres, 45 id. 170, Decision No. 15,292).