Appeal of EMILIA STEELE, on behalf of her niece ABIGAIL MARCELO, from action of the Board of Education of the Wallkill Central School District regarding residency.

 

 

(June 25, 2004)

  Harold, Salant, Strassfield & Spielberg, attorneys for petitioner, Jerold Rotbard, Esq., of counsel  

Donoghue, Thomas, Auslander, & Drohan, attorneys for respondent, Natalie J. Marshall, Esq., of counsel 

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Wallkill Central School District ("respondent") that her niece, Abigail, is not a district resident.  The appeal must be dismissed.

On September 3, 2003, petitioner, a district resident, requested Abigail"s admission to respondent's schools.  Petitioner represented that Abigail left her parents" residence in Queens, New York, and came to live with petitioner in July 2003 because she has feared living in New York City since September 11, 2001.

On September 10, 2003, respondent"s designee held a residency hearing which both petitioner and Abigail attended.  Petitioner submitted a custodial affidavit, dated August 22, 2003, in which she swore that Abigail would live with her for two years, until Abigail's eighteenth birthday.  The affidavit further stated that Abigail's mother would continue to provide her with food, clothing and all other necessities. According to respondent"s designee, petitioner also indicated that Abigail's mother would continue to provide Abigail with health insurance coverage through her employer.

At the hearing, petitioner also submitted a parental affidavit of Abigail's mother, dated August 22, 2003.  In it, Abigail's mother stated that Abigail would reside with petitioner for two years because she did not want to live in New York City after September 11, 2001.  Petitioner did not submit a parental affidavit from Abigail's father, although the petition indicates that both parents live together in Queens.

By decision dated September 11, 2003, respondent's designee determined that Abigail was not entitled to attend the schools of the district because total care, custody and control of Abigail had not been transferred. This appeal ensued.  Petitioner's request for interim relief was denied on October 29, 2003.

Petitioner contends that Abigail is entitled to attend respondent"s schools because Abigail"s mother made a total and permanent transfer of custody and control to petitioner.  To substantiate her claim, petitioner  submitted two letters with her petition.  The first, from Abigail's mother, dated and notarized September 16, 2003, states that she gives petitioner full custody of Abigail, including the right to make all medical, educational and daily decisions regarding Abigail"s welfare.  This letter further states that she will no longer provide Abigail with food or any other necessities.  The second letter, dated September 17, 2003, from the Town Clerk of the Town of Plattekill, states that she reviewed the custodial and parental affidavits, as well as other papers, and concluded that Abigail resides with petitioner.

Respondent maintains that Abigail is not entitled to attend its schools because the purported transfer of Abigail's custody and control to petitioner is not total or permanent.  Respondent further argues that the letter from Abigail"s mother fails to address who will provide Abigail with health insurance and does not show an intention to permanently transfer custody of Abigail 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 Humphrey, 43 Ed Dept Rep    , Decision No. 14,940; Appeal of Thomas, 41 id. 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, Decision No. 14,603).  A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of Humphrey, supra; Appeal of Thomas, supra; Appeal of Santana, 40 Ed Dept Rep 57, Decision No. 14,420). This presumption may 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 Maxwell, 42 Ed Dept Rep 134, Decision No. 14,799; Appeal of Donohue, 41 id. 26, Decision No. 14,601; Appeal of Juarez, 39 id. 184, Decision No. 14,208). 

Moreover, 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 Gratton, 43 Ed Dept Rep____, Decision No. 14,922; Appeal of Pierre, 40 id. 538, Decision No. 14,551; Appeal of Mendoza, 39 id. 74, Decision No. 14,178).  A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of A.F., 41 Ed Dept Rep 115, Decision No. 14,633; Appeal of Karmin, 41 id. 72, Decision No. 14,618). 

     I agree that the purported transfer of Abigail's custody and control to petitioner is not total or permanent.  Petitioner's affidavit acknowledged that Abigail would only live with her for two years and that her mother would continue to provide her with food, clothing and any other necessities.  The mother's affidavit also stated that Abigail would only reside with petitioner for two years. 

The mother's letter of September 16, 2003, in which she states that she will no longer provide Abigail with food or any other necessities, does not persuade me that she has made a total and permanent transfer of custody and control.  This letter was written after the residency determination and its wording appears to be specifically designed to address and undermine the rationale for respondent's decision. Furthermore, the letter from the Town Clerk is inconclusive because the Town Clerk has no authority to make such a determination. Since petitioner has not established that there has been a total and permanent transfer of custody of Abigail to petitioner, I do not find respondent's determination to be arbitrary, capricious or unreasonable (Appeal of Mario D., 41 Ed Dept Rep 24, Decision No. 14,600; Appeal of Digilio, 37 id. 25, Decision No. 13,795; Appeal of Garbowski, 36 id. 54, Decision No. 13,653). 

THE APPEAL IS DISMISSED.

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