Appeal of MICHELLE FRANCE-RAYSON, on behalf of CHRISTOPHER FRANCE, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15,820

(August 12, 2008)

Douglas E. Libby and Bernadette Gallagher-Gaffney, Esqs., attorneys for respondent

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

Petitioner is a resident of respondent’s district, and is the older sister of Christopher France.  Prior to December 2007, Christopher lived with his mother in Brooklyn and attended Nazareth Regional High School.  During November and December 2007, Christopher was the victim of several street crimes, and on December 22, 2007, moved to petitioner’s residence.

On December 31, 2007, petitioner obtained temporary custody of Christopher by order of the Family Court, Kings County, until January 23, 2008.  On January 2, 2008, petitioner sought to enroll Christopher as a tenth grade student at Sewanhaka High School.  Her application was originally denied, but an administrative review was conducted on January 10, 2008.  By letter dated January 11, 2008, the administrative review officer determined that Christopher “will be admitted to the Sewanhaka Central High School District on a conditional basis.”  This determination appears to have been based at least in part on a representation by petitioner that a permanent order of custody would be obtained on January 23, 2008.

On January 23, 2008, a second temporary order of custody was obtained from the Family Court, Kings County, until March 13, 2008.  Thereafter, petitioner submitted a Designation of Person in Parental Relationship (“Designation”) pursuant to General Obligations Law, Title 15-A, executed by Christopher’s mother and sworn to on January 24, 2008.  Apparently this document was executed on the advice of a Family Court judge, and specified that it was to be in effect from December 22, 2007, “through 6/22/07.” (This was an obvious typographical error, and it is clear that it was intended to be in effect through June 22, 2008.)

The district conducted a further administrative review on January 30, 2008.  At that time, Christopher’s mother stated that she did not want to give up total custody of Christopher unless it was the only option available to her, and that she had not intended to relinquish permanent custody.

On March 31, 2008, the administrative review officer requested copies of “any final and/or additional court orders.”  Petitioner responded by letter dated April 1, 2008, that no further court action was being pursued and that she was relying on the Designation only.

On April 28, 2008, the hearing officer issued a final decision.  She carefully reviewed the testimony and documentation, and concluded that petitioner had not met her burden in rebutting the presumption that Christopher’s legal residence, for purposes of the Education Law, remained in Brooklyn with his mother.  The decision excluded Christopher from school effective June 26, 2008.

Petitioner commenced this appeal and sought an order permitting Christopher to continue attending Sewanhaka High School during the pendency of the appeal.  On May 29, 2008, respondent’s attorney advised my Office of Counsel that the district had authorized Christopher to continue in attendance through summer school, obviating the need for interim relief.

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 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).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Hardick, 41 Ed Dept Rep 300, Decision No. 14,693) or the hardships of single parenting (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).

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).

The appeal must be dismissed because, as the administrative review officer found:  “A review of the record reveals that there is neither a total nor presumably permanent transfer of care, custody and control ...”  There is no evidence in the record that the original temporary court orders were either extended past March 13, 2008, or otherwise made permanent.  Moreover, the Designation executed by Christopher’s mother states that she is “temporarily entrusting” petitioner with the care of her son, but only from December 22, 2007, to June 22, 2008.  This is insufficient to accomplish a total transfer of care, custody and control.

     In addition, I note that the Designation expired on June 22, 2008, and that General Obligations Law §5-1555(3) specifically provides:

A designation shall not cause a change in the school district of residence of the child for purposes of the education law, and during the period of validity of the designation, the child shall be presumed to be a resident of the school district in which the parent resided at the time the designation was made.

     Accordingly, based upon the record before me, I cannot conclude that respondent acted arbitrarily or capriciously in determining that Christopher 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 Christopher’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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