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Decision No. 15,927

Appeal of JUDETTE POLYNICE, on behalf her cousin, FAFF S.M. LOVINSKY, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15,927

(June 11, 2009)

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 cousin, Faff, is not a district resident.  The appeal must be dismissed.

On August 27, 2008, Faff’s father submitted a registration form requesting that Faff be admitted to respondent’s school district.  He indicated that Faff lived with him at petitioner’s home in Elmont, New York within respondent’s school district.

On October 3, 2008, respondent notified Mr. Lovinsky that Faff was not a district resident because of “Parental Residence Out-of-District.”  Mr. Lovinsky appealed this determination, and an administrative review was held on October 30, 2008.

At the administrative review, Mr. Lovinsky testified that he lives in Miami, Florida and that his wife, Faff’s mother, lives in Haiti.  He stated that he brought Faff to Miami two years ago from Haiti to live with him.  They moved to Elmont in August 2008 to live with his sister’s family, including petitioner, Faff’s cousin.  Mr. Lovinsky stated that he intended to stay in Elmont, but was unable to find work and returned to Miami on September 20, 2008.  He testified that he plans on living in Florida and visiting Faff when he is able.  He explained that he would continue to discuss educational decisions with his sister and petitioner and in the event Faff needed medical treatment, they would make the decisions jointly and he would pay the expenses.  Mr. Lovinsky also testified that he will claim Faff as a dependent on his income tax return.

In a letter dated January 15, 2009, the administrative review officer notified Mr. Lovinsky that his appeal was denied.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 11, 2009.

In this appeal, petitioner asserts that Faff resides with her and her mother in Elmont, within respondent’s district.  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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).

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 Jeudy, 46 Ed Dept Rep 512, Decision No. 15,579).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Moyer, 46 Ed Dept Rep 290, Decision No. 15,511; Appeal of Santana, 46 id. 255, Decision No. 15,499; Appeal of Werner, 45 id. 14, Decision No. 15,244).

On the record before me, there is no evidence that Mr. Lovinsky has relinquished total and permanent custody and control to petitioner.  Mr. Lovinsky testified at the administrative review that he provides financial assistance and medical insurance for Faff and discusses any medical and educational decisions with petitioner and his sister.  He also testified that he claims Faff as a dependent on his tax return.  Based upon this record, I have no basis to find that Faff is a district resident, and the appeal must be dismissed.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of Faff at any time should circumstances change  (Appeal of Striano, 47 Ed Dept Rep 137, Decision No. 15,651).