Appeal of DENISE L. ELLISON, on behalf of Brittany D. Wise, from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 15,437

(August 7, 2006)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Krystina E. Cho, Esq., of counsel

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

Petitioner's sister, Beryl Willet, has been Brittany's legal guardian since the child was in pre-school.  In 2005, Brittany and Ms. Willet moved from New York State to California.  Petitioner alleges that Brittany did not adjust well to the relocation, and as a result Ms. Willet decided to give petitioner total custody and control of the child.

On January 9, 2006, petitioner sought to enroll Brittany in respondent's high school and a residency hearing was held on that date.  By letter dated January 11, 2006, the hearing officer informed petitioner of her determination that Brittany was not a district resident based upon her finding that Ms. Willet had not relinquished total care, custody and control of the child.

This appeal ensued.  On February 3, 2006, petitioner’s request for interim relief was granted.

Petitioner alleges that Brittany resides with her within respondent's district and that Brittany's legal guardian has surrendered parental control to petitioner.  Respondent denies petitioner's allegations and contends that its decision is rational and supported by the evidence before the hearing officer.

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 Innocent, 44 Ed Dept Rep 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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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).

Petitioner alleges that Ms. Willet has surrendered parental control and that Brittany intends to reside with her "indefinitely."  However, according to the hearing officer's notes, petitioner testified that she intends to have Brittany “...live with me until she is 18.  I would then like to work to get her into college.  The mother is not adverse to taking her.  Might go to live with mom if wants to.”  The hearing officer's notes also indicate that petitioner testified that Ms. Willet intended to return to California, but will stay involved with Brittany.

In an affidavit sworn to on January 11, 2006, Ms. Willet stated that the arrangement with petitioner is "to be terminated upon [Brittany's] completion of her senior year June 30, 2006."  She also stated that she would provide the child with food, clothing and other necessities or money toward these items.

When petitioner brought this appeal, she submitted a second affidavit from Ms. Willet, sworn to January 19, 2006, which states that Brittany will reside with petitioner "indefinitely” and that she would not provide food, clothing, necessities or money to Brittany.  The second affidavit, however, was not submitted until after the district’s residency determination, which suggests that it was created, after the fact, in an effort to establish the students' residency (seeAppeal of G.D., 43 Ed Dept Rep 30, Decision No. 14,905). 

On the record before me, I cannot conclude that respondent's determination that Brittany is not a district resident was arbitrary or capricious.  Petitioner has failed to establish a total transfer of control of the child from the guardian to petitioner and it appears from the record that the child is only temporarily residing with petitioner until she becomes 18 years old in September 2006.

THE APPEAL IS DISMISSED.

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