Appeal of DONNA JOHNSON, on behalf of her daughter CARI, from action of the Board of Education of the West Irondequoit Central School District regarding residency.

 

Decision No. 14,943

 

(August 27, 2003)

 

Edward J. Leichtner, Esq., attorney for petitioner

 

Lynda M. VanCoske, Esq., attorney for respondent

 

Petitioner appeals the determination of the Board of Education of the West Irondequoit Central School District ("respondent") that her daughter, Cari, is not a district resident. The appeal must be dismissed.

At the start of the 2002-2003 school year, petitioner and Cari lived in a neighboring school district. Nevertheless, respondent admitted Cari to its high school based on petitioner"s statement that a closing date of September 23, 2002 had been set for petitioner and her husband (Cari"s father) to purchase a house located in the district. However, before that closing date, the seller decided to sell the house to another buyer.

On October 18, 2002, petitioner made an offer to purchase another house within the district which was rejected by the seller.  On November 26, 2002, petitioner made another offer to purchase the same house.  The seller accepted that offer on December 13, 2002.  However, for a number of reasons, the closing on the property was delayed.

Between September 2002 and March 2003, respondent repeatedly extended its permission for Cari to remain enrolled in its high school pending proof of Cari"s residency.  By letter dated March 4, 2003, respondent"s director of standards support ("director") informed petitioner and Cari"s father that Cari would be excluded from the high school effective March 12, 2003 because they had not provided proof of residency.

On March 31, 2003, the closing on petitioner"s house in the district occurred. On April 1, 2003, petitioner had separate phone conversations with the director and superintendent concerning Cari"s residency.  Both the director and superintendent asked petitioner several questions related to whether petitioner resided in the district.  Petitioner, however, declined to respond to these inquiries.  Petitioner did indicate to the director that she and Cari would reside in the newly purchased house in the district, but that Cari"s father and Cari"s siblings would not reside with them.  She refused, however, to explain the circumstances surrounding these living arrangements.

On April 21, 2003, the director informed petitioner that she and Cari"s father must provide a written affidavit detailing Cari"s residency and the custodial arrangement between petitioner and Cari"s father.  The director provided petitioner with a blank custodial affidavit form eliciting this information, and directed her to return the affidavit to respondent by April 23, 2003.  During this conversation, petitioner again indicated that Cari"s father and petitioner"s other children would continue to reside in a house outside the district.  Respondent permitted Cari to attend respondent"s high school from April 21 through April 25, 2003 pending completion of the custodial affidavit.

Petitioner and Cari"s father failed to return the completed custodial affidavit form.  On April 25, 2003, the director notified petitioner and Cari"s father that Cari would be excluded from respondent"s high school as of the end of that school day.  This appeal ensued.  Petitioner"s request for interim relief was granted on May 20, 2003.

Petitioner asserts that she owns a house within the district and Cari resides with her at that house.  She submits an affidavit from Cari"s father stating that he gives "" Cari permission to attend the West Irondequoit School District based on her residency at [the newly purchased house] with [petitioner]."

Respondent does not dispute that petitioner owns a house in the district, but contends that ownership of property in a school district does not, without more, confer residency status.  Respondent asserts that it reasonably concluded that petitioner has not established residency within the district based on petitioner"s failure to provide any evidence of residency other than documents showing home ownership.  Respondent also submits a private investigator"s surveillance report that indicates that petitioner generally stays overnight at Cari"s father"s house, rather than at the house in the district. Respondent further contends that the petition should be dismissed because petitioner"s verification of the petition was submitted after the petition was filed.

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 Marshall, 43 Ed Dept Rep __, Decision No. 14,911; Appeal of B.O. and D.O., 42 id. ___, Decision No. 14,769; Appeal of Metze, 42 id. ___, Decision No. 14,768). 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 Marshall, supra; Appeal of B.O. and D.O., supra; Appeal of Metze, supra). A child's residence is presumed to be that of his or her parents (Appeal of Y.R., 42 Ed Dept Rep __, Decision No. 14,886; Appeal of Hutchinson, 42 id. ___, Decision No. 14,865; Appeal of Vazquez, 42 id. ___, Decision No. 14,841). Where a child"s parents live apart, the child can have only one legal residence ( Appeal of Burnett , 42 Ed Dept Rep __, Decision No. 14,825; Appeal of Jones and Frank-Jones, 42 id. __, Decision No. 14,797). In cases where parents have been awarded joint custody and the child"s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child"s residency lies ultimately with the family (Appeal of Williams, 42 Ed Dept Rep __, Decision No. 14,756; Appeal of Brown, 42 id., Decision No. 14,760 ).  However, when parents claim joint custody but do not produce proof of the child"s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Brown, supra ).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Vazquez, supra; Appeal of Newby, 42 Ed Dept Rep  , Decision No. 14,790; Appeal of Leontakianakos, 42 id. ___, Decision No. 14,757). Moreover, in an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of B.H. and B.H., 43 Ed Dept Rep __, Decision No. 14,919; Appeal of J.T., 43 id. __, Decision No. 14,917).

The director avers in her affidavit that petitioner indicated that Cari"s father and petitioner"s other children will continue to reside outside of the district. She further states that petitioner has refused to explain the circumstances surrounding these living arrangements, or provide any detail concerning any custody arrangement with Cari"s father. Neither petitioner nor Cari"s father completed a custodial affidavit as requested.  Moreover, petitioner, who is represented by counsel, failed to submit any reply to respondent"s answer or the sworn affidavits submitted by respondent in opposition to petitioner"s request for interim relief.

It is undisputed that petitioner owns property in the district.  Mere ownership of property, however, without more, does not establish residency (Appeal of Crosier, 42 Ed Dept Rep __, Decision No. 14,835; Appeal of Wilkinson, 41 id. 131, Decision No. 14,637; Appeal of Reynolds, 41 Ed id. 32, Decision No. 14,604).  Petitioner"s evidence of residency is essentially limited to the conclusory statements of petitioner and Cari"s father that Cari resides with petitioner in the district.  Accordingly, on the record before me, I cannot conclude that respondent"s decision was arbitrary or capricious.

In light of this disposition, I need not address respondent"s remaining contention.

 

THE APPEAL IS DISMISSED.

END OF FILE

---