Appeal of JAMES MARTIN, on behalf of his daughter MONIQUE, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,227

(April 13, 2011)

Law Offices of Thomas F. Liotti, attorneys for petitioner, Lucia M. Ciaravino, Esq., of counsel

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

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that his daughter, Monique, is not a district resident entitled to attend its schools tuition-free.  The appeal must be dismissed.

Petitioner owns a home within respondent’s district (“Baldwin address”) where he lived with Monique, his current spouse, Marlyn Martin (“stepmother”), and their children.  In July 2010, apparently due to marital difficulties and a pending divorce, petitioner moved out of the Baldwin address to “a separate, undisclosed residence elsewhere.”  Previously, in April 2010, Monique moved into her biological mother’s home in another school district (“Cambria Heights address”), also due to the family circumstances.

On or about August 6, 2010, the stepmother notified the district that Monique no longer lived at the Baldwin address but, instead, lived at the Cambria Heights address.  Based on this information, respondent’s investigator conducted surveillance on three mornings in August and observed Monique leaving the Cambria Heights address with her mother, who drove her to respondent’s high school.  The director of pupil services notified petitioner by letter dated August 24, 2010, of her initial determination that Monique was not a district resident and provided him with an opportunity to meet and submit evidence regarding residency.[1]  After meeting with petitioner and Monique’s mother, the director of pupil services notified petitioner, by letter dated September 20, 2010 of her final determination that Monique is not a district resident and would be excluded from school, effective September 27, 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 12, 2010.

Petitioner admits that Monique has been living with her mother at the Cambria Heights address, outside the district, since April 2010.  He claims that he has temporarily relocated from the Baldwin address pending a final divorce determination.  He asserts his intention to return to the district with Monique upon resolution of his marital difficulties and, therefore, argues that Monique’s living arrangement with her mother should be viewed as only “temporary.”  Petitioner also states that he remains in daily contact with his daughter, and is actively involved in all considerations concerning her health, safety, education and well being.  He seeks a determination that Monique is a resident of respondent’s district, entitled to attend school there.

Respondent maintains that its residency determination was in all respects proper.

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).

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).

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 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 parties do not dispute that, at the time of the September 20, 2010 residency determination, Monique was living with her mother outside the district.  Additionally, petitioner has provided no evidence that he currently lives within respondent’s district.  Petitioner claims that he intends to return to the Baldwin address with Monique once his pending divorce is finalized.  At this juncture it is speculative whether petitioner will retain the Baldwin address after his divorce or otherwise return to respondent’s district.  Moreover, petitioner has offered no evidence of continuing ties to the community other than ownership of the house at the Baldwin address.

Conversely, it is clear that Monique has been living with her mother outside the district since April 2010.  Therefore, on the record before me, petitioner has not met his burden of proof that his daughter resides in respondent’s district.   Accordingly, I cannot conclude that respondent’s residency determination was arbitrary or capricious.

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

THE APPEAL IS DISMISSED

END OF FILE.