Appeal of KINETTA POWELL, on behalf of her son MALIK McFADDEN, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 15,639

(August 16, 2007)

Gerald Gardner Wright, P.C., attorneys for petitioner, Sandra C. Watkins, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

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

Petitioner is a college student and an international flight attendant.  Petitioner claims that because of her travel schedule, her son, Malik, lives with his maternal grandparents on East Marshall Street in Hempstead, within respondent’s district.  Petitioner claims that the East Marshall Street address is also her primary residence. 

In September 2004, petitioner registered Malik in respondent’s Grand Avenue Elementary School using the East Marshall Street address.  As proof of residency, petitioner submitted an “Owner’s Affidavit” from her mother stating that she and Malik lived at the East Marshall Street address.

In February 2006, respondent began an investigation into petitioner’s residency after learning that she had leased an apartment on West Columbia Street in Hempstead, outside respondent’s district.

On the mornings of November 8 and 15, 2006, a residency investigator (“investigator”) for the district observed the East Marshall Street address but did not see petitioner’s car and did not see Malik leave that residence for school.  On November 16, 2006, at approximately 8:56 a.m., the investigator observed petitioner drop Malik off at school and then return to the West Columbia Street address.  On the mornings of November 16, 20 and 21, 2006, an investigator observed the East Marshall Street address but did not see Malik leave that residence for school.  On November 22, 2006, at approximately 8:35 a.m., an investigator observed Malik exit the East Marshall Street residence and enter a silver van in which he was driven to school.

On two mornings in March 2007, the investigator observed petitioner leaving the West Columbia Street address alone; on two other mornings that month, petitioner was observed leaving that address with Malik.

By letter dated March 16, 2007, respondent’s superintendent and administrative assistant for central registration (“administrative assistant”) advised petitioner that they had determined that Malik was not a district resident and would be excluded from respondent’s schools after March 27, 2007.  The letter further advised petitioner that she could appeal this decision by requesting a registration review conference (“conference”).

The conference was held on March 30, 2007.  By letter dated March 30, 2007, the administrative assistant affirmed the March 16, 2007 decision that Malik was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 7, 2007.

Petitioner contends that both she and Malik reside with her parents at the East Marshall Street address, within respondent’s district.

Respondent contends that petitioner has failed to show that she is a district resident.  Respondent also maintains that even if Malik does live with his grandparents in respondent’s district, petitioner has produced no evidence that she has transferred custody to her parents such that Malik would be entitled to attend respondent’s schools tuition-free.

Respondent also contends that petitioner’s reply is untimely.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]).  Respondent’s affidavit of service indicates that the answer was served by mail on May 8, 2007.  Thus, petitioner’s reply was due on May 22, 2007.  However, petitioner’s affidavit of service indicates that the reply was served by mail on May 23, 2007.  Accordingly, I have not considered petitioner’s reply affidavit.

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).

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).

To support her claim of residency, petitioner produced copies of several documents including her driver’s license, W-2 forms, and automobile insurance and social security statements listing her address as East Marshall Street.  Petitioner has also submitted affidavits from family members, friends, neighbors, clergy and college faculty and staff stating that Malik lives in respondent’s school district.

While these documents do indicate that petitioner uses her parents’ in-district address as her mailing address, they are not dispositive of petitioner’s residency, particularly in light of the district’s investigation.  Moreover, petitioner submitted an affidavit from her aunt which states that Malik lives with his grandparents and “does not reside” with petitioner.

Petitioner admits that she leases an apartment outside respondent’s district.  Her petition refers to this apartment as “my space where I study and when a couple of my co-workers lay over in New York, they sometimes stay there.”  Malik’s name is also on the lease.  Petitioner acknowledges that when she is not traveling she divides her time between this apartment and the East Marshall Street address.  Based on the record before me, I find that petitioner has failed to establish actual physical presence in the district.

Further, there is no evidence in the record before me that petitioner has transferred total and permanent custody and control of Malik to her parents.  While petitioner’s father states in an affidavit that he and his wife are Malik’s “primary care-givers” and that Malik has lived with them since birth, the record contains no evidence that petitioner’s parents are, for example, Malik’s sole source of support or possess the authority to make medical or educational decisions on his behalf.

Therefore, I find that petitioner has failed to establish that Malik is a district resident entitled to attend respondent’s schools tuition-free.  Accordingly, respondent’s determination is neither arbitrary nor capricious and will not be set aside.

Although the petition must be dismissed on the record before me, I note that petitioner has the right to reapply to the district for admission on her son’s behalf if circumstances have changed.

THE APPEAL IS DISMISSED.

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