Appeal of QUONDRA J. WILLIS, on behalf of her son TERRY M. McLAMORE, from action of the Board of Education of the Gates-Chili Central School District regarding residency.

Decision No. 15,942

(July 14, 2009)

Goldstein, Ackerhalt & Pletcher, LLP, attorneys for respondent, Jay C. Pletcher, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Gates-Chili Central School District (“respondent”) that her son, Terry, is not a district resident.  The appeal must be dismissed.

Prior to January 2009, Terry resided with his father within respondent’s district.  On December 29, 2008, petitioner filed a petition for custody of Terry, which indicated that she and Terry resided on Roslyn Street within the city of Rochester, outside of respondent’s school district.  On January 15, 2009, petitioner filed a “certificate of shared housing” with respondent, indicating that she and Terry resided with her aunt within the district.

Thereafter, the district initiated a residency investigation.  On March 24, 2009, respondent’s coordinator of student support services informed petitioner that, based on the surveillance, she had reason to believe that Terry was not a district resident and that he would be excluded from the district’s schools as of April 3, 2009.

By letter notarized on April 2, 2009, petitioner advised respondent that effective January 1, 2009 she gave her aunt temporary guardianship of Terry.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 21, 2009.

Petitioner alleges that she and her son reside with her aunt within the district.  Respondent alleges that petitioner and her son reside outside the district and maintains that its residency determination was not arbitrary or capricious.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).

Petitioner’s notarized statement that her aunt has temporary guardianship of Terry is not sufficient evidence of a total, permanent transfer of Terry’s custody and control, nor does petitioner allege that this is the case.  Absent a permanent transfer of custody and control, Terry’s residence is presumed to be that of his mother.

In support of her claim of residency, petitioner offers a “certificate of shared housing” indicating that she and Terry reside within the district with her aunt.  Petitioner has presented no other documentation to support her residency claim.

The school district’s investigation revealed that two vehicles are registered to petitioner at the Rochester address.  Investigators conducted surveillance March 16 through 20, 2009 and found that the vehicle used by petitioner, as well as one of the vehicles registered to petitioner, were located at the Rochester address on all five days.  In addition, petitioner was observed either leaving or returning to the Rochester residence on four occasions.  Petitioner explains that her mother, who is ill, lives at the Rochester address.  She also contends that her vehicle was inoperable and that she was using he mother’s vehicle.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

Although respondent’s evidence is not overwhelming, petitioner offers no documentary proof of residency within the district.  Based on this record, I cannot conclude that respondent’s determination was arbitrary and capricious.

Although the petition must be dismissed, I note that petitioner has the right to reapply to the district for her son’s admission if circumstances change and to present any new information for the district’s consideration.

THE APPEAL IS DISMISSED.

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