Decision No. 14,618

(August 3, 2001)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Eastchester Union Free School District ("respondent") that her son, Christopher, is not a district resident. The appeal must be dismissed.

Sometime during the 2000-01 school year, Amy Goodman, the district's director of pupil personnel services, received information that petitioner was residing in Yonkers, outside respondent"s district. On April 11, 2001, Ms. Goodman met with petitioner and her mother, at which time petitioner admitted that she has custody of Christopher, she maintains a residence at 39 Winfred Avenue, Yonkers, and Christopher stays with her at the Yonkers residence. Based on this information, Ms. Goodman notified petitioner by letter dated April 18, 2001, of her determination that Christopher was not a district resident and was, therefore, not entitled to attend district schools tuition-free. This appeal ensued. Petitioner's request for interim relief was granted on May 15, 2001.

Petitioner asserts that Christopher resides with his grandparents at 174 Woodruff Avenue, Scarsdale, within respondent"s district. She states that she had been living with Christopher and her parents in Scarsdale but was forced to move from her parents' house due to a difficult divorce situation. Initially, Christopher stayed with his grandparents and did not live with her in Yonkers. However, at some point, Christopher came to stay with petitioner in Yonkers because his grandparents had to take care of his great-grandmother, who had suffered a stroke. Petitioner asserts that she is residing in Yonkers on a temporary basis and is seeking permanent residency within respondent"s district.

Respondent asserts that its determination that Christopher is not a district resident is in all respects correct because petitioner admits that she lives outside the district and that she has custody and control of Christopher.

Education Law "3202(1) provides, in pertinent part:

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 Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Rosati, 38 id. 216, Decision No. 14,018). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). To determine one's intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family's continuing ties to the community and their efforts to return (Appeal of Schwartzburt, 37 Ed Dept Rep 139, Decision No. 13,825).

Furthermore, a child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Epps, supra; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). However, this presumption may be rebutted (Appeal of Epps, supra; Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Rosati, supra). Where the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Beska, 39 Ed Dept Rep 661, Decision No. 14,344).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Lokkeberg, 38 Ed Dept Rep 134, Decision No. 14,001). Petitioner admits that she is currently living in Yonkers with Christopher. However, she asserts that she is living there temporarily and is seeking permanent residency in respondent"s district. Nonetheless, petitioner has not demonstrated any continuing ties to the district except for the facts that her parents reside there and Christopher attends school there. The only indication that petitioner is attempting to return to the district is an e-mail notification regarding rental units dated April 12, 2001. Although I am sympathetic to petitioner's situation, the bare assertion of an intention to return to the district, absent any showing that continuing efforts are being made to secure a residence, is legally insufficient to establish residence (Appeal of Lokkeberg, supra).

Moreover, petitioner admits that she has not surrendered custody and control of Christopher to her parents. She admits that she, together with her parents, support Christopher and exercise control over his activities and behavior. Accordingly, I find that petitioner has not rebutted the presumption that Christopher resides with her outside the district, and that respondent's determination is neither arbitrary, capricious nor unreasonable.

While the appeal is dismissed for these reasons, I note that petitioner retains the right to reapply to the district for admission on Christopher's behalf should the circumstances described in this appeal change (Appeal of Smith, 39 Ed Dept Rep 28, Decision No. 14,163).

THE APPEAL IS DISMISSED.

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