Appeal of R.K., on behalf of D.A.B., from action of the Board of Education of the Bay Shore Union Free School District regarding residency.

Decision No. 15,978

(August 24, 2009)

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

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that D.A.B. is not a district resident.  The appeal must be sustained.

Petitioner owns a home within respondent’s district.  D.A.B.’s mother, who is petitioner’s niece, resides in North Carolina.  On April 15, 2009, petitioner attempted to register D.A.B. for school in respondent’s district.  Petitioner submitted a Custodial Affidavit and a Parent Affidavit in which she and D.A.B.’s mother affirmed that D.A.B. would permanently reside with petitioner; that petitioner would be responsible for providing D.A.B. with food, clothing, medical expenses and all other necessities; and that petitioner would have control of D.A.B., including the right to make decisions pertaining to his health, welfare and education.

By letter dated April 21, 2009, respondent’s director of student services/central registration notified petitioner that D.A.B. did not qualify for registration because there was insufficient evidence of transfer of custody and control of D.A.B. to a district resident, for reasons other than education.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 15, 2009.

Petitioner contends that D.A.B.’s mother can no longer financially support him, that D.A.B. will permanently reside with her and that she will exercise control over him, including making decisions pertaining to his health, welfare and education.

Respondent contends that petitioner has failed to establish a clear legal right to the relief requested and that D.A.B. is not a district resident.  Respondent alleges that the sole reason petitioner sought to enroll D.A.B. in its schools was to take advantage of its educational program.

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).

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeal of Proctor, 46 id. 575, Decision No. 15,599).

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).

Petitioner’s Custodial Affidavit and D.A.B.’s mother’s Parental Affidavit, clearly state that the student will permanently reside with petitioner and that petitioner will support him and have complete control over him.  Petitioner also submits a supporting affidavit from D.A.B.’s mother in which she asserts that she transferred custody of D.A.B. to petitioner for financial reasons, not educational reasons.  She indicates that she has been unemployed since December 2008, does not have any savings, is receiving Medicaid and cannot afford to support her son.  The majority of her petition also asserts that petitioner exercises custody and control over D.A.B.[1] Therefore, on the totality of the record before me, I find that petitioner has sustained her burden of proving that D.A.B.’s mother has made a total and presumably permanent transfer of custody and control to petitioner.

Respondent’s only evidence that custody of D.A.B was transferred for educational reasons is an affidavit by its bilingual clerk typist that the reason for D.A.B.’s enrollment was to take advantage of respondent’s schools.  The bilingual clerk typist indicates that D.A.B.’s mother stated that North Carolina lacks a good “special education curriculum” and that both she and petitioner indicated that that was the reason she enrolled D.A.B. in respondent’s school district.  I find that this, alone, is insufficient to establish that the student’s mother sent him to live with her aunt solely for educational reasons.  Both petitioners and D.A.B.’s mother’s affidavits cite unemployment and financial difficulties as the primary reason that D.A.B.’s mother is unable to care for him and why she transferred custody to petitioner.

Therefore, I find that the record does not support respondent’s determination that D.A.B. is not a district resident, and I must set aside that determination as arbitrary and capricious.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow D.A.B. to attend school in the Bay Shore Union Free School District without the payment of tuition.

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