Appeal of KEITH and JUNE GITTENS, on behalf of their granddaughter SHANTELLE, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,226

(April 5, 2011)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that their granddaughter, Shantelle, is not a district resident.  The appeal must be dismissed.

Petitioners reside on Woodside Avenue in respondent’s district.  In September 2010, petitioners attempted to enroll Shantelle in the district.  By letter dated September 16, 2010, the director of pupil services (“director”) denied her enrollment on the basis that Shantelle was not a district resident.  Thereafter, Shantelle was enrolled in a private school, and respondent was asked to provide her with books and transportation to and from this school.[1]  By letter dated October 5, 2010, the director also denied this request.  This appeal ensued.  Petitioners’ request for interim relief was denied on October 27, 2010.

Petitioners claim that Shantelle has resided with them since June 2010.  Petitioners, therefore, seek a determination that Shantelle is a district resident, is entitled to attend respondent’s schools without payment of tuition, and is also entitled to private school transportation and textbooks from respondent.

Respondent asserts that Shantelle’s mother resides outside of its district, and that petitioners have failed to rebut the presumption that Shantelle resides with her.  Respondent contends, therefore, that petitioners have failed to state a claim upon which relief may be granted and its determination that Shantelle is not a district resident is neither arbitrary nor 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).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773). 

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820). 

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).

On the record before me, I find that petitioners have failed to rebutt the presumption that Shantelle’s residence is that of her mother.  Specifically, while petitioners contend that they provide food, shelter and clothing for Shantelle and exercise control over her “activities, behavior and well being,” there is no indication that such support and control rests exclusively with petitioners.  In fact, petitioners indicate that they share “joint custodial control” of Shantelle with her mother (petitioners’ daughter) who they admit lives outside respondent’s district.  Moreover, petitioners admit that Shantelle’s mother provides her with healthcare and is still involved with “pertinent decisions” that affect her.  In addition, the record reflects that both Shantelle’s mother and petitioner June Gittens submitted affidavits to respondent indicating that Shantelle’s living arrangement with petitioners is temporary.[2]  Accordingly, I am unable to find that there has been a total and permanent transfer of control of Shantelle to petitioners, or that respondent’s determination with respect to Shantelle’s residency is arbitrary or capricious.

In light of this disposition, I need not address the parties’ remaining contentions.

While the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to the district on Shantelle’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.