Appeal of SILVIA G. REA, on behalf of MATIAS PULGAR ALFARO, from action of the Board of Education of the Springs Union Free School District and Superintendent Michael Hartner regarding residency.

Decision No. 16,271

(July 29, 2011)

Thomas W. Horn, Jr., Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondents, Neil M. Block, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Springs Union Free School District (“board”) to deny her nephew, Matias, admission to the school district.  The appeal must be dismissed.

Petitioner is the cousin of Matias, who was born in the district and resided there with his parents until the family relocated to their native Chile when he was 12 years old.  On or about February 6, 2011, petitioner, a district resident, attempted to register Matias for high school (the board contracts to send its high school students to the East Hampton Union Free School District [“East Hampton”]).  She completed and submitted a Guardian’s Affidavit of Custody, and also submitted two copies of a Parent’s Affidavit of Custody: one completed in Spanish by Matias’ parents, and one completed in English, translated by petitioner.

By letter dated March 4, 2011, the superintendent determined that Matias was not entitled to attend school in the district because he was presumed to live with his parents who did not reside there.  Petitioner retained counsel and on March 9, 2011, they met with the superintendent and the district’s counsel and provided additional information about Matias.  By letter dated March 11, 2011, petitioner’s counsel requested that the board reconsider the superintendent’s determination.  By letter dated March 17, 2011, the superintendent again denied Matias admission.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 28, 2011.

Petitioner asserts that Matias has bona fide reasons for moving back to the district, has lived with her since February 4, 2011 and intends to live with her permanently, and that she has total custody and control of him.  She admits that Matias has contact with his parents via telephone, but asserts that Matias’ parents do not contribute financially to his upbringing, and submits proof of insurance that she has obtained for him.  She contends that respondents erroneously believed that a formal guardianship proceeding was required, that they failed to provide specific reasons for denying her application and that their decision is arbitrary and capricious.  She seeks a determination that Matias is a district resident entitled to attend the schools of the district without the payment of tuition.

Respondents deny that petitioner is Matias’ guardian and deny that she has sole custody, control or parental responsibility for him.  They assert that the sole reason Matias is residing with petitioner is to take advantage of the district’s schools and therefore he has not established residency in the district.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

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 Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of Dennis, 47 id. 327, Decision No. 15,712).  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 A Student with a Disability, 47 Ed Dept Rep 142, Decision No. 15,652).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In the Guardian’s Affidavit, petitioner stated that she “has [sic] the Legal Guardian of Matias Pulgar and full power of [sic] pertaining of [sic] the health, welfare and education” and “will provide [ ] food, clothing and other necessities. . . and any responsibility relating with his education and Medical Care.”  She further stated that “Matias . . . will be living with his Cousin Silvia Rea so he can attend East Hampton High School, because his parent [sic] are currently living in Chile. . . My Cousin Matias Pulgar went to school at East Hampton until he was 11 years old, and left to Chile for 5 years.  He never got use [sic] to the school system in Chile, so I’m giving him the opportunity to get the education he wants and needs.”

In the English version of the Parent’s Affidavit of Custody, translated by petitioner, the parents give full power to petitioner to make decisions pertaining to the health, welfare and education of Matias.  They stated that Matias is not living with them in Chile because “he wants to finish High School in United States of America . . . he never got use [sic] to the school system in Chile, he believes he will get better education in United States of America so we are giving him the opportunity to follow his dreams!!!”

The record indicates that there has been a transfer of custody and control of Matias to petitioner.  It also clearly indicates, however, that Matias is living with petitioner for educational purposes, specifically, for “the opportunity to get the education he wants and needs,” and “the opportunity to follow his dreams.”  Although the petition asserts that there are additional reasons for Matias wanting to live with petitioner, essentially involving Matias’ desire to re-establish friendships and social connections, there is no documentary or sworn evidence in the record to substantiate that Matias is living with petitioner for anything other than taking advantage of the schools of the district (compareAppeal of L.H., et al., 49 Ed Dept Rep 14, Decision No. 15,947).  Taking advantage of the opportunity for social relationships with classmates is just another aspect of taking advantage of the schools of the district.  Accordingly, based on the record before me, I cannot conclude that respondents’ determination was arbitrary or capricious (seeAppeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726).

I have considered petitioner’s other contentions and find them to be without merit.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Matias’ behalf and to present any new information or documentation for respondent’s consideration (seeAppeal of Clancy, 50 Ed Dept Rep, Decision No. 16,150).

THE APPEAL IS DISMISSED.

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