Appeal of TONYA WILSON, on behalf of her daughter JAIDA, from action of the Board of Education of the Gates-Chili Central School District regarding residency.

Decision No. 15,773

(July 3, 2008)

Goldstein, Ackerhalt & Pletcher, LLP, attorneys for respondent, Arthur H. Ackerhalt, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Gates-Chili Central School District (“respondent”) that her daughter, Jaida, is not a district resident.  The appeal must be dismissed.

In September 2007, Jaida enrolled in respondent’s district based on the representation that she lived with her step-mother, identified as Precious Billingslea, in respondent’s district.  On December 18, 2007, however, Jaida was notified that she could not return to respondent’s schools because petitioner did not reside in the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 25, 2008.

It is undisputed that petitioner is not a resident of respondent’s district.  Rather, petitioner asserts that, for health reasons, she appointed Ms. Billingslea, who is a resident of respondent’s district, as Jaida’s “legal guardian.”  Accordingly, petitioner contends that while Jaida visits her on weekends, holidays and special occasions, she really resides with Ms. Billingslea.  As proof, petitioner submits a notarized “Child Guardianship Consent” form dated February 12, 2007.  Pursuant to this form, petitioner purportedly gave a number of powers to Ms. Billingslea, including “permission and consent” to establish a place of residence for Jaida and “full authorization” to make all educational, religious, recreational and medical decisions for her.

Respondent argues that the Child Guardianship Consent form submitted by petitioner was not issued by a court and has no legal effect.  In addition, respondent asserts that Ms. Billingslea is Jaida’s godmother (not her step-mother), and that Jaida stays with her during the week for the sole purpose of attending its schools.  Respondent further maintains that petitioner continues to exercise control over Jaida’s activities and provides financial support for her.  Respondent, therefore, argues that petitioner has failed to rebut the presumption that Jaida resides with petitioner, and that petitioner has failed to show that its decision was arbitrary or capricious.

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).

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).

In this case, I find that petitioner has failed to rebut the presumption that Jaida resides with her, and not Ms. Billingslea.  While the “Child Guardianship Consent” form submitted by petitioner purports to give Ms. Billingslea certain rights with respect to Jaida, there is no indication that these rights rest exclusively with Ms. Billingslea, or that complete custody and control of Jaida has been transferred to her.  In fact, any claim to the contrary is belied by the fact that this proceeding was commenced by petitioner herself, and not Ms. Billingslea.

Moreover, the record is silent with respect to whether Ms. Billingslea has assumed any or all financial responsibility for Jaida.  Without this information, and in light of the circumstances described above, it is impossible to determine whether there has been a total and permanent transfer of custody and control of Jaida to Ms. Billingslea.  Thus, based on the totality of the record, I am unable to find that respondent’s decision was arbitrary or capricious.

THE APPEAL IS DISMISSED.

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