Appeal of M.M.H., on behalf of her daughter L.H., from action of the Board of Education of the North Babylon Union Free School District regarding residency.

Decision No. 16,207

(March 24, 2011)

Guercio & Guercio, LLP, attorneys for respondent, Nancy Hark, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the North Babylon Union Free District (“respondent”) that her daughter, L.H., is not a district resident.  The appeal must be dismissed.

On or about October 4, 2010, the district’s director of student data services (“director”) received information that L.H. was residing on Rose Place in North Babylon in the Wyandanch Union Free School District (“Wyandanch”) and that her father was driving her each morning to a bus stop in respondent’s district.  Since district records revealed L.H.’s address to be on Centerwood Street in North Babylon, within the district, the director directed district security personnel to investigate.  An investigator conducted surveillance at the Centerwood Street address from 7:00 a.m. to 7:45 a.m. on seven of eight consecutive weekday mornings from October 20 to November 1, 2010, and reported that although L.H. was in school on time on those days, he never observed her or petitioner leave the residence there.

By letter dated November 1, 2010, the director notified petitioner that he was questioning L.H.’s residency and offered her the opportunity to submit information to verify her residence in the district.  At a hearing with the director on November 10, 2010, petitioner testified that she currently resided on Centerwood Street in a house owned by her cousin.  She stated that she had been residing there, on and off, for six months, that she had a room in the house, and that every morning of the current school year at approximately 7:15 a.m., she leaves the house, drives L.H. to her father’s house on Rose Place, and he then drives her to an in-district bus stop.  Petitioner stated that L.H. had been attending school in the district for four years, but had previously attended school in Wyandanch when petitioner and her husband were together.  Petitioner also stated that although things were not working out with her husband, they had no custodial arrangement, he paid all her bills including her car insurance, and everything, including her paycheck, was sent to Rose Place.  Petitioner submitted a one-line affidavit from someone she claimed was her cousin, which stated that petitioner resided and paid rent at Centerwood Street.

By letter dated November 10, 2010, the director determined that L.H. was not a resident of the district and was ineligible to attend school there as of November 19, 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 24, 2010.

Respondent contends that petitioner has failed to demonstrate a clear legal right to the relief she seeks, a physical presence in the district or an intent to remain there.  It further contends that it provided petitioner an opportunity to present evidence, and that its determination was rational and supported by the record and 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).  In cases where parents have joint custody, 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 T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  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 Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).

The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner states that she exercises control over L.H. and L.H. resides with her.  However, she also states that they reside “between” Rose Place and Centerwood Street and that her time at Centerwood Street is “on and off.”  Her husband, in his affidavit, states that petitioner and L.H. “partly reside” at Centerwood Street and requests that L.H. continue to be allowed to stay there so that petitioner’s cousins can assist with childcare for L.H. on the rare occasions when the demands of his and petitioner’s jobs conflict.

Petitioner can have only one legal residence.  She has failed to establish not only that she resides at Centerwood Street in the district, but also that she has abandoned her out-of-district residence at Rose Place.  She concedes that her husband pays all the bills, and that everything, including her paycheck and car registration, are sent to Rose Place.  Furthermore, petitioner failed to present evidence rebutting the surveillance report wherein she was never observed at Centerwood in the early morning.  Nor did she present any evidence that she and her husband are actually living apart or have joint custody of L.H., or that L.H. is essentially dividing her time between two households.

Based on the record before me, petitioner has failed to meet her burden of proof.  Accordingly, I cannot conclude that respondent acted arbitrarily or capriciously in determining that L.H. is not a district resident and is not entitled to attend the district's schools tuition-free.

THE APPEAL IS DISMISSED.

END OF FILE.