Appeal of FELIX CUSI, on behalf of hisgrandson MATTHEW RYAN MENDEZ, from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding residency.

Decision No. 16,517
(August 26, 2013)

Ingerman Smith, L.L.P., attorneys for respondent, Carolyn
J. Grimaldi, Esq., of Counsel
KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Katonah-Lewisboro Union Free School District (“respondent”) thathis grandson, Matthew Ryan Mendez, is not a district resident. The appeal must be dismissed.
Petitioner is a resident of respondent’s district andis Matthew’s maternal grandfather. Petitioner’s daughter,Matthew’s mother, resided with petitioner in respondent’sdistrict when Matthew was born in 2007. She has been attending college in Peru since March 2012. According topetitioner, Matthew has lived with him in respondent’sdistrict since he was born.
In February 2013, petitioner and Matthew’s mother,sought Matthew’s admission to the district’s schools for kindergarten, beginning in September 2013. As part of theregistration process, petitioner and Matthew’s mother metwith the registrar and were asked to complete a guardianaffidavit and a parent affidavit, respectively. In his affidavit, petitioner stated that Matthew will be living with him for five years because Matthew’s mother and fatherare studying in Peru. He also stated he will provideMatthew with food, clothing and all other necessities andthat he will be in charge of Matthew’s health, welfare andeducation. In addition, he stated that Matthew will travelto Peru on summer vacations.
In her affidavit, Matthew’s mother stated that she wasliving in Peru and studying at a university there with herhusband who is from Peru. She also stated that Matthew will be living with her parents for five years until shefinishes her degree. In addition, she stated that her parents will provide food, clothing and all other necessities for Matthew while he is living with them andthat they will assume full responsibility for all matters
relating to Matthew’s education and medical care. Matthew’smother further stated that Matthew will be traveling toPeru during the summer.
By letter dated March 4, 2013, the superintendentnotified petitioner that Matthew was not entitled to register in respondent’s schools. Specifically, the superintendent found that the transfer of care, custody andcontrol of Matthew to petitioner was not permanent, as thearrangement was to expire in five years, and was for thesole purpose of Matthew attending school in the district.This appeal ensued. Petitioner’s request for interim relief was denied on April 11, 2013.
Petitioner alleges that Matthew resides with him in respondent’s district. He claims that he provides Matthewwith food, shelter and clothing and exercises control overhis activities and behavior. He requests a determinationthat Matthew is a resident of respondent’s district entitled to attend its schools without the payment oftuition.
Respondent claims that there has not been a total andpermanent transfer of care, custody and control over Matthew to petitioner. Respondent also claims that thetransfer of custody to petitioner was solely to take advantage of the educational program of the school district. Respondent maintains that its determination thatMatthew is not a district resident is in all respectsproper.
I must first address a procedural issue. Respondentcontends that petitioner’s reply is untimely. A replyshall be served within 10 days after service of the answerto which it responds (8 NYCRR §275.14[a]). If the answer has been served by mail, the date of mailing and the fourdays subsequent thereto shall be excluded in computing the10-day period (8 NYCRR §275.14[a]; Appeal of a Student witha Disability, 48 Ed Dept Rep 98, Decision No. 15,803;Appeal of Jacoby, 47 id. 321, Decision No. 15,710).
Respondent’s affidavit of service indicates that itsanswer was served by mail on April 22, 2013. Petitioner’s reply should have been served no later than May 6, 2013.By letter dated June 18, 2013 to my Office of Counsel,respondent’s attorney indicated that she had “just beenprovided with a copy of a proposed Verified Reply ... whichwas apparently faxed to the Commissioner on or about May22, 2013.” Respondent objected to the late reply. Byletter dated July 10, 2013 to respondent’s attorney andcopied to petitioner, my Office of Counsel advised that ithad never received any reply. On July 24, 2013, petitioner submitted a reply and as an explanation for the latefiling, he indicated that he had to travel abroad andprepared the reply upon his return. However, petitioner’sexplanation does not constitute good cause for submitting alate reply. Accordingly, I have not considered it. Turning to the merits, 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 ofschool districts to provide tuition-free education to students whose parents or legal guardians reside within thedistrict (Appeal of Polynice, 48 Ed Dept Rep 490, DecisionNo. 15,927; Appeal of Naab, 48 id. 484, Decision No.15,924). “Residence” for purposes of Education Law §3202is established by one’s physical presence as an inhabitantwithin the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free SchoolDist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484,Decision No. 15,924). A child's residence is presumed tobe 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 Polynice, 48 Ed Dept Rep 490, DecisionNo. 15,927).
The presumption that a child resides with his or herparents or legal guardians can be rebutted upon a determination that there has been a total, and presumablypermanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed DeptRep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773). While it is not necessary to establish parental custody and control through a formalguardianship proceeding, it is necessary to demonstratethat a particular location is a child’s permanent residenceand that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep490, Decision No. 15,927; Appeal of Wilson, 48 id. 1,Decision No. 15,773).
Generally, if parents or legal guardians continue toprovide financial support for room, board, clothing andother necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48Ed Dept Rep 490, Decision No. 15,927). Similarly, whereparents or legal guardians retain control over important issues such as medical and educational decisions, totalcontrol is not relinquished (Appeal of Polynice, 48 Ed DeptRep 490, Decision No. 15,927; Appeal of France-Rayson, 48id. 142, Decision No. 15,820).
Where the sole reason the child is residing withsomeone other than a parent or legal guardian is to takeadvantage of the schools of the district, the child has notestablished residence (Appeal of Cheng, 47 Ed Dept Rep 366,Decision No. 15,726; Appeal of Mendoza, 47 id. 285,Decision No. 15,698).
A residency determination will not be set aside unlessit is arbitrary and capricious (Appeal of White, 48 Ed DeptRep 295, Decision No. 15,863; Appeal of a Student with aDisability, 48 id. 171, Decision No. 15,828). In an appealto the Commissioner, the petitioner has the burden ofdemonstrating a clear legal right to the relief requestedand the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep295, Decision No. 15,863; Appeal of a Student with aDisability, 48 id. 171, Decision No. 15,828).
Respondent maintains that there has not been a totaland permanent transfer of care, custody and control overMatthew to petitioner. Specifically, respondent claimsthat the arrangement is temporary in that it will only bein effect during the school year and for the next fiveyears. After careful consideration of the record, I must agree.
It is undisputed that the custody arrangement is onlyfor a finite period of five years, presumably while petitioner is in Peru. Petitioner has not established that there has been a total and permanent transfer of care,custody and control over Matthew to him, given the limitedperiod for the transfer of custody. Therefore, petitionerhas failed to rebut the presumption that Matthew lives withhis mother.
I have also considered whether Matthew’s mother’s absence from respondent’s district is temporary, given thatthe arrangement with petitioner will apparently last untilMatthew’s mother completes her degree in Peru. A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 EdDept Rep 166, Decision No. 15,827; Appeal of Hussain, 46id. 108, Decision No. 15,456). A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located,or the abandonment of one’s permanent residence (Appeal ofLin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal ofStewart, 46 id. 92, Decision No. 15,450). To determine one’s intent as to whether a living arrangement is indeedtemporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community andtheir efforts to return (Appeal of Lin, 48 Ed Dept Rep 166,Decision No. 15,827; Appeal of Hussain, 46 id. 108,Decision No. 15,456; Appeal of Stewart, 46 id. 92, DecisionNo. 15,450).
The record indicates that Matthew’s mother is livingin Peru with her husband, Matthew’s father, who was born inPeru. The record further indicates that they are studyingat a university in Peru and that Matthew’s mother has beenthere since approximately March 2012. While Matthew’s mother states in her affidavit that Matthew will be livingwith petitioner for five years until she finishes herdegree, there is nothing in the record demonstrating herintent to return to respondent’s district. In addition,petitioner has not demonstrated that Matthew’s mother hasany continuing ties to respondent’s district, other thanthe fact that he and his wife reside there and look after Matthew. This fact alone does not constitute sufficient ties to the district establishing the mother’s intent toreturn there to live, especially given that she is livingwith her husband in Peru (see Appeal of Schmitt, 49 Ed DeptRep 271, Decision No. 16,022).
On this record, I decline to substitute my judgmentfor that of respondent regarding Matthew’s residency.Where evidence is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determiningresidency, the determination will not be set aside (Appealof Steinberg, 36 Ed Dept Rep 65, Decision 13,658).
While the appeal must be dismissed, I note that petitioner retains the right to reapply for Matthew’s admission to the district in the future should circumstances change, and to present any new information ordocumentation for respondent’s consideration.
In light of this disposition, I need not address theparties’ remaining contentions.
THE APPEAL IS DISMISSED.

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