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Decision No. 16,029

Appeal of FUZHU LI, on behalf of her nephew CHRISTOPHER WAI LI, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency.

Decision No. 16,029

(March 3, 2010)

Geng & Zhang PLLC, attorneys for petitioner, Ting Geng, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, David F. Kwee, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that her nephew, Christopher, is not a district resident.  The appeal must be dismissed.

On August 17, 2009, petitioner attempted to enroll Christopher in respondent’s schools, alleging that he resides with her in North Woodmere, within the district.  She submitted three affidavits with a letter stating that Christopher’s parents are living in Hong Kong and designated her as his legal guardian while he attends school in the United States.  Christopher’s parents each submitted an “affidavit of authorization” purportedly authorizing petitioner to become Christopher’s guardian while he stays in the United States.  Petitioner also provided her own affidavit stating that she resides in North Woodmere with her husband, three daughters and son.

By letter dated August 19, 2009, respondent’s business administrator informed petitioner that additional information was needed to determine Christopher’s residency status.  The letter requested that petitioner provide either documentation from a court affirming her appointment as Christopher’s custodian or information using respondent’s custodial and parental affidavit questionnaire forms.

Petitioner submitted a custodial affidavit indicating that Christopher will be living with her permanently and that she will provide his food, clothing and all other necessities but that his parents will provide his health insurance and other financial support.  Christopher’s father submitted a parent affidavit dated August 24, 2009 stating that both parents are working overseas in Hong Kong and that Christopher will be living permanently with petitioner, who will have the right to make decisions pertaining to his health, welfare and education.  The affidavit also stated that Christopher’s parents will be providing his health insurance coverage and any ongoing financial support.

By letter dated August 24, 2009, respondent’s business administrator denied petitioner’s request to enroll Christopher and invited her to meet on August 26, 2009.  At that meeting, petitioner again provided the information in her affidavit and other submissions.  Afterward, petitioner submitted a letter dated August 25, 2009 from her attorney explaining that because Christopher’s parents “cannot take care of their son themselves in the U.S., they are making an arrangement for their American-born son to live with a guardian so that he can receive the American education he deserves as a U.S. citizen.”

Following the August 26, 2009 meeting, the business administrator sent petitioner a final notice dated August 28, 2009 that Christopher does not reside within respondent’s district because there was no complete transfer of custody and control, as his parents provide ongoing financial support.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 25, 2009.

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, petitioner has not met her burden of proving that Christopher is a district resident.  There is insufficient evidence that Christopher’s parents have relinquished total and permanent custody and control to petitioner. The affidavits and other documents submitted by petitioner state that Christopher’s parents will be providing him with health insurance and other financial support.  In addition, petitioner offers no evidence that she has obtained a court order appointing her as guardian of her nephew.  Accordingly, the appeal is dismissed.

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