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Decision No. 15,969

Appeal of MAUDE BOAYUE, on behalf of AVION WASHINGTON, from action of the Board of Education of the Jamesville-DeWitt Central School District regarding residency.

Decision No. 15,969

(August 14, 2009)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jonathan B. Fellows, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Jamesville-DeWitt Central School District (“respondent”) that her grandson, Avion, is not a district resident.  The appeal must be dismissed.

Petitioner is Avion’s grandmother and resides in Syracuse, New York outside respondent’s school district.  Avion’s grand-aunt, Nerida Rivera, resides in respondent’s district.  His mother previously resided in Syracuse and currently attends college in Florida. 

Avion attended school in respondent’s district during the 2008-2009 school year.  In November 2008, Avion’s bus driver reported that, although he dropped Avion off at his grand-aunt’s address, he never observed him entering the building but, instead, saw him wait at the bus stop or get into a vehicle registered to petitioner. 

By letter dated November 12, 2008, the superintendent notified Avion’s mother that Avion’s residency was in question and provided her an opportunity to present information.  In response, Avion’s mother sent a notarized statement that she left Syracuse to attend college in Florida and further that she’d “given my aunt Nerida Rivera ... temporary custody of my son Avion ... and to also make medical decision on the behalf of me while I am away in school.”

On November 17, 2008, the superintendent’s secretary received a call from the office manager of Ms. Rivera’s apartment complex.  In an affidavit, the secretary stated that the office manager told her that Avion’s mother telephoned that same day and requested that Avion’s name be added to the lease.  According to the secretary, Avion’s mother told the office manager that Avion would not be living there, but that Ms. Rivera sometimes watches Avion. 

Respondent’s superintendent determined that Avion was not a district resident and this appeal ensued.  Petitioner’s request for interim relief was denied on December 17, 2008.

Petitioner contends that Avion resides in respondent’s district with Ms. Rivera.  She claims that she and Ms. Rivera support Avion and that, although Avion has contact with his mother, parental control was surrendered to Ms. Rivera.  Respondent asserts that the superintendent’s determination that Avion is not a district resident is in all respects proper.

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).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580,

Petitioner has failed to rebut the presumption that Avion’s residency is with his mother outside the district.  Significantly, the transfer of custody to Ms. Rivera is neither permanent nor total.  The statement Avion’s mother provided to respondent indicates she gave Ms. Rivera “temporary custody” while she was in Florida.  In addition, Ms. Rivera was authorized to make only medical decisions – not educational decisions.  Those factors, taken together with the observations of Avion’s bus driver and the secretary’s affidavit, support respondent’s determination.  Accordingly, I cannot conclude that the residency determination was arbitrary or capricious.