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Decision No. 15,343

Appeal of PETER JARZYNKA, on behalf of NATASHA ZIEMBIEC, from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 15,343

(January 19, 2006)

Justin S. White, Esq., attorney for petitioner

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

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

Petitioner is the uncle of Natasha Ziembiec, and resides within the Williamsville Central School District. Natasha began attending Williamsville South High School in March 2004. Natasha's mother, Julie Jarzynka, resides in the Clarence Central School District.

Petitioner states that he is the legal guardian of Natasha, but presents no evidence of appointment as such. Petitioner also states: "The basis of my guardianship of the pupil is that her mother is way [sic] from home a considerable amount of the time, and I act as guardian for the child." Natasha's mother provides financial support for her, and was entitled to claim Natasha as an exemption on her 2004 income tax returns, while petitioner states that he was not entitled to do so.

In June 2005, a district counselor attempted unsuccessfully to contact Natasha at petitioner's address about attendance at summer school. Thereafter, the district sent to petitioner a letter dated July 7, 2005, requesting that he provide information by August 1 on Natasha's residency and dependency status, and that if he failed to provide the information, she would be excluded from district schools as of August 1. In a letter dated July 21, 2005, petitioner's attorney provided information to the district indicating that Natasha could be claimed as an exemption only by her mother, and that Natasha was employed and partially supporting herself. The district adhered to its position and excluded Natasha as of August 1.

This appeal was commenced August 5, 2005, and interim relief was denied on August 17, 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).

In the appeal before me, petitioner has not presented any proof of legal guardianship. There is no dispute that Natasha's mother lives outside the district, and that she provides considerable financial support for Natasha. There is evidence that she has regularly attended school meetings and made educational decisions on behalf of her daughter. She has also requested that all school records be sent to her at her out-of-district address. While there is a vague claim in the petition that Natasha's mother is away from home "a considerable amount of time," there is no affidavit from Natasha's mother giving any reasons for, or describing the extent of, her absences, nor is there any claim of hardship with respect to single parenting or any other matter.

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). Petitioner has failed to provide any evidence which would overcome the presumption that Natasha's legal residence is that of her mother, in the Clarence Central School District. Accordingly, there is no basis to overturn respondent's determination.

THE APPEAL IS DISMISSED.

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