Appeal of FLORE JEUDY, on behalf of CAROLINE JEAN-LOUIS, from action of the Board of Education of the Baldwin Union Free School District regarding residency and transportation.

Decision No. 15,579

(May 7, 2007)

Ingerman, Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her cousin, Caroline, is not a district resident and its refusal to provide Caroline with transportation to a nonpublic school.  The appeal must be dismissed.

Petitioner is a resident of respondent’s school district.  Caroline’s father lives in Elmont, New York and during the 2005-2006 school year, Caroline attended seventh grade at Elmont Memorial High School.

On or about September 19, 2006, petitioner and Caroline’s father, attempted to enroll Caroline in respondent’s school district.  On September 20, 2006, petitioner indicated that Caroline would attend eighth grade at the New Jerusalem Christian Academy (“Academy”) and requested transportation for her.

The district requested that petitioner and Caroline’s father execute parental and custodial affidavits.  According to Caroline’s father, Caroline would temporarily reside with petitioner until July 2008.  He stated that Caroline was getting involved with the “wrong crowd” and that he was unable to care for her because of his work schedule.  Petitioner stated that both she and Caroline’s father provide Caroline with food, clothing and all other necessities.

On September 25, 2006, the district requested additional information regarding the purported transfer of custody and control.  Caroline’s father stated that because of his work schedule and because there were gangs in Elmont, he was requesting enrollment in respondent’s schools.  The district also received several letters from third parties in support of the request for enrollment.

By letter dated September 27, 2006, respondent’s Director of Pupil Services (“director”) notified petitioner that Caroline was not entitled to books and transportation from respondent’s district because she was not a district resident.  By letter dated November 1, 2006, the director again denied petitioner’s request.  On November 2, 2006, the director and the district’s registrar met with petitioner to discuss the determination.  At that meeting, petitioner explained that Caroline’s father pays her tuition, provides $100 per month for food, clothing and health care and claims Caroline as a dependent for income tax purposes.  By letter dated November 2, 2006, the director issued a final determination that Caroline is not a resident of respondent’s district, and is therefore not eligible to receive services from the district.  This appeal ensued.  Petitioner's request for interim relief was denied on November 22, 2006.

Petitioner maintains that she has physical custody of Caroline and that Caroline resides with her in respondent’s district.  Petitioner maintains that she can provide Caroline with a more stable living environment than her father.  Petitioner requests a determination that Caroline is a district resident and is entitled to attend school and to receive transportation.

Respondent argues that there is no evidence to rebut the presumption that Caroline legally resides with her father outside the district.  Respondent also contends that petitioner admits that Caroline spends time with her father outside the district and receives financial support from him.  Respondent alleges that Caroline’s living arrangements were made solely to take advantage of respondent’s district and it is under no obligation to provide Caroline with transportation to the Academy.

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).

Where the sole reason the child is residing with someone other than a parent or legal guardian 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).

The record reflects that the purported transfer of Caroline’s custody and control to petitioner is neither total nor permanent.  The district’s registration forms and custodial affidavits submitted by petitioner and Caroline’s father indicate that Caroline’s father did not relinquish custody and control of Caroline, that he would continue to provide significant financial support, that Caroline maintains a relationship with her father and that the living arrangements with petitioner are temporary.  These facts demonstrate that there has not been a total and permanent transfer of custody to petitioner.

A residency determination will not be set aside unless it is arbitrary 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).  On the record before me, I cannot find respondent’s residency 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).

Petitioner requests that respondent provide Caroline with transportation to the Academy.  Education Law §3635(1)(a) requires school districts to provide transportation for all resident children to and from the school a child legally attends within certain parameters.  Respondent is not required to provide transportation for nonresident students (Appeal of Fuller, 41 Ed Dept Rep 86, Decision No. 14,623; Matter of Empson, 19 id. 139, Decision No. 10,067).

THE APPEAL IS DISMISSED.

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