Decision No. 14,344

(April 25, 2000)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the North Babylon Union Free School District ("respondent") that Candice Jaccoi is not a district resident. The appeal must be dismissed.

Petitioner is a resident of respondent’s district. Candice Jaccoi, whom petitioner describes as a friend, moved in with petitioner on January 5, 2000. Petitioner states that Candice intends to reside with her two more years, until she finishes school.

Candice’s mother, Debra Scriva, lives outside respondent’s district and, apparently, moves frequently. In 1999 Candice lived with her mother and attended school in three different districts. Candice found this very disruptive and arranged to move in with petitioner to continue school in North Babylon, where she had previously attended school since fourth grade.

Ms. Scriva has not indicated an intent to return to respondent’s district. She pays petitioner rent to cover the cost of Candice’s food and shelter. Petitioner has not sought to become Candice’s legal guardian and states that Ms. Scriva remains willing to support Candice "medically and financially." Candice and her mother talk frequently by telephone. Ms. Scriva continues to be involved in decisions about Candice’s education.

The district registrar conducted a hearing to determine Candice’s residency on January 26, 2000. By letter dated January 28, 2000, he notified petitioner that, based upon the information set forth above, he had determined that Candice was not a district resident. This appeal ensued. Petitioner’s request for interim relief was denied on February 11, 2000.

Petitioner asserts that Candice resides with her and not with Ms. Scriva. She seeks a determination that Candice is a resident entitled to attend school in respondent’s district without paying tuition.

Respondent argues that petitioner has not rebutted the presumption that Candice resides with her mother. Respondent asserts that petitioner has not presented evidence of a total transfer of custody and control to her and that Candice is living with petitioner solely to gain access to the North Babylon schools. Finally, respondent argues that petitioner lacks standing to bring this appeal.

Initially, I will address the issue of standing. An individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that she or he has suffered personal damage or injury to her or his civil, personal or property rights (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Cron, 38 id. 149, Decision No. 14,005; Appeal of Bocek, 37 id. 130, Decision No. 13,822). In this case, petitioner is a resident of respondent's school district. A child residing in her household for whom the presumption of parental residence has been rebutted may attend district schools tuition-free. Petitioner alleges that respondent has abrogated that right, and I therefore find that petitioner may bring an appeal to challenge respondent's action (Appeal of Young and Billings, supra; Appeal of Cron, supra; Appeal of Bocek, supra).

The appeal, however, must be dismissed on the merits. Education Law "3202(1) provides, in pertinent part:

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 Young and Billings, supra; Appeal of Cron, supra; Appeal of Rivkin, 37 Ed Dept Rep 370, Decision No. 13,882).

A child's residence is presumed to be that of his or her parents or legal guardians but this presumption may be rebutted (Appeal of Young and Billings, supra; Appeal of Cron, supra; Appeal of Murphy, 37 Ed Dept Rep 162, Decision No. 13,831). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Young and Billings, supra; Appeal of Cron, supra; Appeal of Murphy, supra). Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Murphy, supra; Appeal of Keenan, 36 Ed Dept Rep 6, Decision No. 13,635; Appeal of O’Malley, 35 id. 550, Decision No. 13,629).

While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Pernell, 30 Ed Dept Rep 380, Decision No. 12,502), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Cron, supra; Appeal of Pernell, supra). Where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of a Student with a Disability, 37 id. 29, Decision No. 13,796).

The record before me demonstrates that Candice’s mother has not relinquished custody. Ms. Scriva pays petitioner rent to cover Candice’s expenses and continues to provide other financial support. She remains involved in decisions about Candice’s education. The notarized statements submitted with the petition are ambiguous and represent, at most, a sharing of custody. Moreover, petitioner acknowledges that Candice came to live with her because she wanted to attend school in North Babylon and that she will remain with petitioner only until she finishes school. Under these circumstances, I find that petitioner has not rebutted the presumption that Candice’s residence remains with her mother outside the North Babylon district. Accordingly, respondent's determination is sustained.

THE APPEAL IS DISMISSED.

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