Appeal of LAUREN WERTS, on behalf of her children YAMINEQUA WERTS and JOSHUA CUMBERBATCH, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 15,655

(August 31, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Freeport Union Free School District (“respondent”) that her children, Yaminequa and Joshua, are not district residents.  The appeal must be dismissed.

Petitioner resides outside the Freeport Union Free School District (“district”), and alleges that her children live at an address within the district with their grandmother.  Petitioner states that her children have lived in the district for more than ten years, and have attended district schools.

As a result of a telephone call made by petitioner to a district employee from a Hempstead telephone exchange, respondent began an investigation into the residency of petitioner and her children, which included surveillance at petitioner’s out-of-district address in February and March of 2007.  Respondent determined to exclude the children effective May 11, 2007, but, after petitioner appealed, that determination was changed to exclude the children as of June 22, 2007.

Petitioner claims that her children are entitled to attend district schools because they reside in the district, although she does not.  Petitioner alleges that she and her husband have surrendered parental control to the children’s grandmother, but presents no evidence of any such surrender, and further admits that she and her husband continue to provide financial support and clothing for both children.

Respondent contends that neither petitioner nor her children are residents of the district, based on the admissions in the petition and the surveillance conducted in February and March of 2007.

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).

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 (seeCatlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Nelson, 44 Ed Dept Rep 20, Decision No. 15,082).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (seeAppeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917).

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).

Petitioner has failed to rebut the presumption that her children’s legal residence is with her, outside the district.  There is no evidence that would support her claim that there has been a full relinquishment of custody and control.  Indeed, petitioner admits that she and her husband continue to provide financial support.  In addition, school records, signed by petitioner, continue to list petitioner and her husband as “emergency home contact” persons, while the grandmother is listed as a neighbor or nearby relative “who will assume temporary care of ... [the children] if ... [the parents] cannot be reached.”

Based upon the record before me, I find that petitioner has failed to rebut the presumption that her children reside with her outside the district, and I cannot conclude that respondent acted arbitrarily or capriciously in determining that petitioner’s children are not district residents.

THE APPEAL IS DISMISSED.

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