Appeal of MARY THERESA GRASS, on behalf of CHELSEA MYKUL KELLY, from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 15,743

(April 14, 2008)

Donoghue, Thomas, Auslander & Drohan, LLP., attorneys for respondent, John M. Donoghue and Bryn Sarvis Pace, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pine Bush Central School District (“respondent”) that her niece, Chelsea Mykul Kelly, is not a district resident.  The appeal must be dismissed.

Petitioner resides within respondent’s school district.  Chelsea’s parents reside in Colorado.  Before moving to Colorado in 2006, Chelsea’s family lived in respondent’s district where Chelsea attended school.  In June 2007, Chelsea returned from Colorado to live with petitioner.

In July 2007, petitioner attempted to enroll Chelsea in the district.  Respondent’s designee held a residency hearing and, on July 6, 2007, determined that Chelsea was not a district resident.  On September 20, 2007 petitioner and Chelsea’s mother were afforded another opportunity to present evidence of Chelsea’s residency.  No further evidence was submitted and respondent’s designee upheld the July 6, 2007 determination that Chelsea was not a resident.

Petitioner indicated that she intended to appeal pursuant to Education Law §310 and seek a stay of the residency determination.  Respondent agreed to enroll Chelsea pending initiation of the appeal and a determination of any stay request.  This appeal ensued.  On November 21, 2007, petitioner’s request for interim relief was denied.

Petitioner contends that Chelsea resides with her in respondent’s district.  She asserts that she exercises custody and control over Chelsea and that a proceeding to name her Chelsea’s legal guardian was initiated in New York State Family Court.

Respondent contends that Chelsea’s mother has not transferred total custody or control to petitioner, nor has petitioner obtained legal guardianship.  Respondent asserts, therefore, that Chelsea is not a district resident and is not entitled to attend district schools tuition- free.

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).

Moreover, 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).

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).

Petitioner has failed to rebut the presumption that Chelsea’s legal residence is with her mother, outside of respondent’s district.  Although petitioner submits a notarized “consent” signed by Chelsea’s mother, purportedly in connection with the alleged Family Court proceeding, in which the mother agrees to share joint custody of Chelsea with petitioner, there is no indication that the document was ever filed with the court.  Nor has petitioner submitted any court order of legal guardianship or joint custody.

In addition, petitioner has not established that she has full authority and responsibility for Chelsea’s support and custody or that she exercises total control over medical and educational decisions.  Despite petitioner’s assertion that she supports Chelsea, documents submitted to the district indicate that Chelsea’s mother intends to retain joint custody, provide food, clothing and “what ever [sic] Chelsea needs” and also claim Chelsea for tax purposes.  A written agreement signed by petitioner, Chelsea and her mother indicates that petitioner must provide school report cards to Chelsea’s mother and report any instances of attendance or other problems, which will result in Chelsea’s return to Colorado.  Indeed, petitioner’s mother has contacted school officials on at least one occasion for information regarding Chelsea’s school attendance.

The documents also indicate that Chelsea was not happy in Colorado and has returned to respondent’s district to live with petitioner for two years to complete high school.

Based upon the record before me, I cannot conclude that respondent acted arbitrarily or capriciously in determining that Chelsea is not a district resident.  While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Chelsea’s behalf, should circumstances change, and to present any new information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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