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Decision No. 15,499

Appeal of ISABEL SANTANA, on behalf of DANIELLE CABRERA, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Douglas E. Libby, Esq., attorney for respondent

Decision No. 15,499

(December 8, 2006)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her granddaughter, Danielle, is not a district resident.  The appeal must be dismissed.

 On April 28, 2006, petitioner’s daughter, Catherine Cajigas, submitted a registration form requesting that Danielle be admitted to respondent’s school district.  Ms. Cajigas identified herself as Danielle’s mother and her boyfriend as Danielle’s “guardian.”  Ms. Cajigas also indicated that she lived at petitioner’s home in New Hyde Park, within respondent’s school district.  The boyfriend’s address was listed as Queens Village, outside respondent’s school district.

On July 24, 2006, respondent notified Ms. Cajigas that Danielle was not a district resident because of “Parental Residence Out-of-District.”  Ms. Cajigas appealed this determination, and an administrative review was held on August 3, 2006.

At the administrative review, Ms. Cajigas stated that she lived in Queens Village with her other two children and had lived there for approximately two years.  She stated that, prior to moving to Queens Village, she had lived with Danielle at petitioner’s New Hyde Park home for approximately one year.  Ms. Cajigas also testified that she pays for Danielle’s clothing and food and makes medical decisions on her behalf.  When asked whether there was a reason that Danielle did not live with her mother, both Ms. Cajigas and petitioner responded, “No.”

In a letter dated August 10, 2006, the administrative review officer notified Ms. Cajigas that her appeal was denied.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 6, 2006.

In this appeal, petitioner asserts that Danielle resides with her, rather than with Ms. Cajigas, because Danielle’s asthma worsens when she stays at her mother’s residence.  Respondent argues that this appeal must be dismissed because there has been no total and permanent transfer of custody and control to petitioner.

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 Innocent, 44 Ed Dept Rep 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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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 Nelson, 44 Ed Dept Rep 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).

On the record before me, there is no evidence that Ms. Cajigas has relinquished total and permanent custody and control to petitioner.  Ms. Cajigas testified at the administrative review that she continues to provide financial support for her daughter and to make medical decisions on her behalf.  It was Ms. Cajigas, rather than petitioner, who filled out the registration form for Danielle to attend respondent’s school.  Further, Ms. Cajigas indicated on the registration form that she was not relinquishing custody and control of Danielle.  Based upon this record, I have no basis to find that Danielle is a district resident, and the appeal must therefore be dismissed.

I note, however, that on August 31, 2006, petitioner filed a “Petition for Appointment of Guardianship” in the Family Court of Nassau County.  Petitioner retains the right to reapply to the district for admission on Danielle’s behalf at any time should circumstances change (Appeal of Orr, 45 Ed Dept Rep 153, Decision No. 15,287).