Appeal of PERVEEN BEGUM, on behalf of her nephew, Muhammad Murtaza Hussain, from action of the Board of Education of the North Babylon Union Free School District regarding residency.

Decision No. 16,799

(August 3, 2015)

Law Offices of Guercio & Guercio, LLP, attorneys for respondent, Anthony J. Fasano, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Babylon Union Free School District (“respondent”) that her nephew is not a district resident.  The appeal must be dismissed.

The record indicates that, on October 17, 2014, petitioner requested admission to respondent’s schools for her nephew, Muhammad Murtaza Hussain (“Hussain”), at which time petitioner stated that Hussain lived with her in North Babylon, New York (“in-district address”).  The record indicates that petitioner submitted registration materials in support of such request; however, such materials are neither referenced by petitioner nor attached to the parties’ appeal papers.  Respondent states that, based upon a review of the registration materials submitted by petitioner, it determined that a residency hearing was necessary pursuant to Section 100.2(y) of the Commissioner’s regulations.  A residency hearing was held on November 7, 2014, at which petitioner, Hussain, and petitioner’s son were present.[1]  By letter dated November 7, 2014, respondent informed petitioner that Hussain was not a district resident and was therefore not entitled to attend respondent’s schools on a tuition-free basis.  This appeal ensued.  Petitioner’s request for interim relief was granted on December 17, 2014.

Petitioner asserts that Hussain has resided with her at the in-district address since October 2014 and that he intends to remain there for ten years.  She further claims that she supports Hussain, provides him with food, shelter and clothing and exercises control over him.  Petitioner explains that Hussain’s parents, who reside in Italy and Pakistan, have surrendered parental control over him to petitioner and that Hussain, a U.S. citizen, is not living with his parents because they reside outside the United States and cannot enter the country due to “immigration reasons.”  Petitioner requests a determination that Hussain is a resident of respondent’s district and is entitled to attend its schools on a tuition-free basis.

Respondent contends that its determination is rationally based and not arbitrary and capricious, and, therefore, should not be set aside.  Respondent further contends that Hussain is residing in the district for the sole purpose of attending the schools of the district and there has not been a total and permanent transfer of custody and, consequently, petitioner has failed to meet her burden of establishing a clear legal right to the relief requested.

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).

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 (see 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).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820).

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 Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  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).

Initially, I note that the record indicates that petitioner stated at the hearing that Hussain maintains regular contact with his parents via telephone and skype and that he would visit his parents during the summer and vacations.  However, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Lebron, 35 id. 359, Decision No. 13,570; Appeal of McMullan, 29 id. 310, Decision No. 12,304).

Nevertheless, on the record before me, petitioner has not carried her burden of establishing that there has been a total and permanent transfer of custody and control over Hussain from his parents to petitioner.  Petitioner includes no documentary evidence with her petition, in which she alleges that she is supporting Hussain, that she exercises control over his activities and behavior, and that his parents have surrendered parental control over him.  However, petitioner’s testimony at the residency hearing directly conflicts with the statements made in her petition and undermines her claims in this regard.  For example, when asked if she would consult Hussain’s parents when making decisions on Hussain’s behalf, petitioner indicated that they would be consulted for medical decisions but that petitioner may be in a better position to make educational decisions given her proximity to Hussain.  Further, when asked if Hussain could return home at any time upon request of his parents or of his own volition, petitioner indicated that he could.

In this case, there is no evidence in the record that Hussain’s parents transferred total and permanent custody and control of Hussain to petitioner.  As noted above, 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).[2]   Other than petitioner’s conclusory assertions, which are undermined by her inconsistent statements at the hearing, the record in this case contains no such proof.  Indeed, petitioner’s own testimony at the hearing indicates that Hussain could return to his parents at any time upon their request or if he so chose.

The record also indicates that the sole reason Hussain came to the United States to live with petitioner is to “further his studies in the United States.”  Therefore, the record indicates that he is staying with petitioner to attend her school district tuition-free (see Appeal of Guevara, 54 Ed Dept Rep, Decision No. 16,634; Appeal of Schillaci, 53 id., Decision No. 16,570).  Previous Commissioner’s decisions have found that, where there are overriding reasons for establishing one’s residence apart from one’s parents, aside from taking advantage of the educational programs of the district, and all the indicia of residency have been met, the fact that the choice of residence incidentally affords the student the opportunity to attend a certain school is not determinative (see e.g., Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208).  However, as described above, the indicia of residency have not been established and no such overriding reason(s) has been alleged in this case. 

Accordingly, on this record, petitioner has not rebutted the presumption that Hussain’s residence is with his parents (see Appeal of Shillaci, 53 Ed Dept Rep, Decision No. 16,570; Appeal of Arreguin, 50 id., Decision No. 16,088; Appeal of Brunot, 35 id. 402, Decision No. 13,584).  I find no basis upon which to set aside respondent’s determination.

In light of this disposition, I need not address the parties’ remaining contentions.

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to respondent’s schools on Hussain’s behalf at any time, should circumstances change, and to present any documentary evidence for respondent’s consideration regarding legal transfer of custody or other bona fide reason(s) for establishing residence apart from his parents consistent with 8 NYCRR §100.2(y) as amended, effective July 1, 2015.  This evidence may include, but is not limited to, a custody order or letters of guardianship from a court of competent jurisdiction, proof that the parents are not competent or are otherwise unable to care for their son, proof that the parents’ whereabouts are unknown or that the parents are otherwise unable to be contacted, or evidence that the child is a homeless unaccompanied youth within the meaning of the McKinney-Vento Homeless Education Assistance Improvements Act (42 USC §11431, et seq.).

THE APPEAL IS DISMISSED.

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