Appeal of JAMES Y. CHENG, on behalf of his nephew TING-YU HUANG, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency.

Decision No. 15,726

(February 5, 2008)

Law Firm of Anthony D. Denaro, P.C., attorneys for petitioner, Anthony D. Denaro, Esq., of counsel

Ingerman Smith LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that his nephew, Ting-Yu, is not a district resident.  The appeal must be dismissed.

In August 2007, petitioner requested that Ting-Yu be permitted to attend respondent’s schools.  At that time, petitioner indicated that Ting-Yu was living with him and that his parents were returning to Taiwan for employment reasons.  The paperwork submitted to the district by petitioner and Ting-Yu’s parents indicates that petitioner would be Ting-Yu’s custodian until his 19th birthday, that his parents would provide ongoing financial support and that he had a strong desire to pursue a high school and college education in the United States.

By letter dated August 28, 2007, respondent’s business administrator informed petitioner that, based on the information provided, he was denying admission to Ting-Yu because the arrangement appeared to be for the purpose of attending the district’s schools and that it did not reflect a complete transfer of parental responsibility. 

Petitioner and Ting-Yu’s parents met with respondent’s business administrator on August 30, 2007.  There is nothing in the record to indicate that additional information was provided to the district at that time.  By letter dated August 30, 2007, respondent’s business administrator informed petitioner of his decision that Ting-Yu was not a district resident.

In September 2007, petitioner allegedly applied to the Nassau County Surrogate’s Court for guardianship over Ting-Yu.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 27, 2007.

Petitioner asserts that Ting-Yu is a resident of respondent’s district.  Petitioner argues that there has been a complete and total transfer of parental responsibility to him and that Ting-Yu will reside with him indefinitely.

Respondent contends that Ting-Yu is not a district resident.  Respondent argues that petitioner failed to rebut the presumption that Ting-Yu resides with his parents outside of the district and submits that the purported transfer of custody is temporary and for educational purposes.

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).

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 Nelson, 44 Ed Dept Rep 20, Decision No. 15,082).  Where the sole reason the child is residing with someone other than a parent or legal guardian 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).

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 establish that custody has legally been transferred pursuant to a court order.  Pursuant to §276.5 of the Commissioner’s regulations, my Office of Counsel sent a letter to petitioner’s counsel asking whether petitioner had, in fact, been awarded guardianship of Ting-Yu by the Nassau County Surrogate’s Court, and if so, requesting that he submit a copy of the court order.  Petitioner’s attorney submitted a letter dated December 19, 2007 indicating that petitioner had not yet been awarded guardianship.

In the absence of a court order, residency must be determined by the traditional tests.  In this case, petitioner has failed to rebut the presumption that Ting-Yu’s residency is with his parents.  As set forth above, the affidavits submitted by petitioner and Ting-Yu’s parents at the time of the request for admission indicate that his parents would continue to provide ongoing financial support, that he would remain with petitioner temporarily until he reached the age of 19 and that he had a strong desire to pursue his high school education in the United States.  Under these circumstances, I find that respondent’s determination was reasonable and therefore, I find no reason to set it aside.

While the appeal must be dismissed, I note that petitioner may reapply to the district should a court order be issued (Appeal of G.M-H., 46 Ed Dept Rep 84, Decision No. 15,447).

THE APPEAL IS DISMISSED.    

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