Appeal of ARLENE WERNER, on behalf of ALANNA RICHARDS, from action of the Board of Education of the Sachem Central School District regarding residency.

Decision No. 15,244

(July 15, 2005)

Ingerman Smith LLP, attorneys for respondent, Christopher Venator and Susan E. Fine, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Sachem Central School District ("respondent") that Alanna Richards is not a resident of the district, and is not entitled to attend district schools tuition-free. The appeal must be dismissed.

Petitioner is a district resident and a friend of Alanna Richards' family. Alanna has been living with petitioner since the summer of 2004.

At the beginning of September 2004, Alanna's mother, Eileen Richards, who resides outside the district, attempted to register Alanna to attend respondent's schools. On September 2, 2004, Ms. Richards had a conversation with respondent's attendance officer. Ms. Richards stated that she wished Alanna to reside with petitioner, where she had spent the summer. When Ms. Richards stated that she would be providing money for Alanna's care, the attendance officer advised her that Alanna would be treated as a non-resident, and could not attend the district's schools.

On September 9, 2004, without the attendance officer's knowledge, petitioner registered Alanna at Sachem High School East. Ms. Richards executed a Parent Affidavit (Release of Custody) dated September 2, 2004, indicating that she had transferred full custody and financial responsibility for Alanna to petitioner, and stated that Alanna would live with petitioner until January 2005. Petitioner executed a Registration Affidavit (Custodian) on September 3, 2004, indicating that she had assumed full financial responsibility for Alanna, and that Alanna's parents had assigned full custody and control of her to petitioner until January 2005. The affidavit further stated that the action was being taken because of "family problems."

The attendance officer first learned that Alanna was attending district schools on February 1, 2005, when her mother called the high school to make certain requests. On February 3, 2005, the attendance officer spoke to petitioner, and she states in her affidavit that petitioner told her Alanna receives personal items, clothing, and money from her mother, and that her mother also provides health insurance coverage.

On March 2, 2005, the attendance officer met with Ms. Richards and discussed the situation. As a result, on Mar ch 18, 2005, the attendance officer sent a letter to Ms. Richards advising that Alanna was not a district resident, and that her last day of attendance would be March 23. Alanna was actually excluded from attendance on March 29. This appeal ensued and an interim order was granted on April 18, 2005.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). 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 L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

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 I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930; Appeal of L.P., 43 id. 12, Decision No. 14,901). 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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

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 L.H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Nelson, 44 id. 20, Decision No. 15,082). Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917). However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Y.R., 42 Ed Dept Rep 376, Decision No. 14,886; Appeal of Maxwell, 42 id. 134, Decision No. 14,799) or the hardships of single parenting (Appeal of I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930). In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child's residence (Appeal of I.M., 43 Ed Dept Rep 500, Decision No. 15,065; Appeal of Taylor and Wilson, 43 id. 89, Decision No. 14,930).

The record before me indicates that no complete and permanent transfer of custody was ever made, and that Alanna's residence must be considered that of her mother. The two affidavits from September 2004 indicate that no transfer beyond January 2005 was ever intended. In addition, on February 1, 2005, Alanna's mother, not petitioner, contacted the high school to make a request regarding testing. Two days later, on February 3, 2005, petitioner admitted to the attendance officer that Alanna's mother supplies her with personal items, clothing, shampoo, and lunch money, and in addition provides health insurance coverage. Petitioner's reply confirms those facts. Finally, the record indicates that on March 3, 2005, Alanna's mother, not petitioner, made a medical appointment for her. All of these factors point to a situation where Alanna's mother is not only providing financial support, including health insurance, but is also making educational and medical decisions with regard to her daughter.

Although the petition suggests that there may be a divorce in progress, and that there are "family problems," petitioner has provided insufficient evidence to rebut the presumption that the child's residence is presumed to be that of her par ent.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). 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 St. Villien , 44 Ed Dept Rep 69, Decision No. 15,101).

On the record before me, I cannot find that respondent has been arbitrary or capricious in making its determination.

THE APPEAL IS DISMISSED.

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