Appeal of L.K., on behalf of her niece M.C., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 16,244

(June 6, 2011)

Douglas E. Libby, Esq., attorney for respondent, Bernadette    Gallagher-Gaffney, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her niece, M.C., is not a district resident.  The appeal must be dismissed.

M.C. resided with petitioner in respondent’s district during the summer of 2010.  She returned to her parents’ home in Barryville, New York and attended Eldred Junior-Senior High School (“Eldred”) in September 2010.  After a difficult beginning to the school year, on September 14, 2010, M.C. moved back with petitioner, who attempted to enroll her in respondent’s high school.

By letter dated September 17, 2010, respondent’s administrative assistant to the superintendent informed petitioner that he determined that M.C. is not a district resident and, therefore, is not entitled to attend its schools.  On September 21, 2010, a residency review was conducted before an administrative review officer who affirmed the residency determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 21, 2010.

Petitioner asserts that M.C.’s father is very ill and her brother disabled.  Because M.C.’s mother cares for them and the family lives on a very limited income, M.C.’s mother cannot “physically and mentally” support M.C. and has asked petitioner for assistance.  Additionally, petitioner alleges that M.C. has been assaulted and subjected to threats at Eldred.  Petitioner contends that M.C.’s parents have surrendered parental control of M.C. to her, that she exercises control over M.C.’s activities and behavior, and that she is supporting M.C. by providing her food, shelter and clothing.  Additionally, on October 8, 2010, petitioner filed for guardianship with the Nassau County Family Court.

Respondent asserts that it properly determined that M.C. is not a district resident.  Respondent argues that petitioner has failed to establish a complete and total transfer of custody and control of M.C. from her parents and that M.C. is attempting to take advantage of respondent’s schools because she is having difficulties at Eldred.

I must first address a procedural issue.  Respondent’s answer included an affirmative statement of facts.  Section 275.12 of the Commissioner’s regulations sets forth the contents of an answer and it does not allow for an affirmative statement of facts.  Therefore, I find the submission inappropriate and it has not been considered.

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).

Where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict, economic hardship, or the hardships of single parenting (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of Dennis, 47 id. 327, Decision No. 15,712).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of A Student with a Disability, 47 Ed Dept Rep 142, Decision No. 15,652).

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 has failed to provide sufficient evidence that there has been a total transfer of custody and control of M.C. by M.C.’s parents to her.  Petitioner’s registration form confusingly states that all financial support will be provided by her and then again that all financial support will be provided by M.C.’s parents.  At the residency hearing, M.C.’s mother clarified that she and her sister would be financially supporting M.C. at 50 percent each.  Accordingly, petitioner has failed to establish a total transfer of care and custody to petitioner.

A parent’s continued financial support is not the only relevant consideration in determining residency.  At the residency hearing, M.C.’s family testified that they lived in Queens until M.C. began her sophomore year, at which time the family moved to Barryville.  M.C. and her mother expressed their discomfort with living in a small, upstate town, with “nothing to do unless you can drive.”  M.C. also testified that she began experiencing what she termed as “unnecessary drama” at Eldred during her junior year.  As an example, she stated that, during the few days she attended school in her senior year, she was threatened by another student - although there was also testimony that the principal intervened and the problem ceased.  M.C.’s mother testified that there was an incident when M.C. was pushed and choked.  It is unclear if this occurred in M.C.’s junior or senior year.  At the residency hearing, both petitioner and M.C.’s mother, echoed the statements made in their registration affidavits, that they wanted M.C. to attend a good school, get a better education and to live closer to her family on Long Island and in Queens.  While these are worthy desires for M.C., they do not constitute entitlement to attend a different school district.  In light of the statements made in the affidavits, and the testimony provided at the residency hearing, it was not unreasonable for respondent to conclude that M.C. is living with petitioner to take advantage of the district’s schools.

Based upon the record before me, I cannot conclude that respondent’s determination that M.C. is not a district resident is arbitrary or capricious.  While the appeal must be dismissed, I note that petitioner may reapply to the district for admission on the student’s behalf at any time and may present for respondent’s consideration any new information bearing on the question of residence – including any court order obtained from the Family Court.

THE APPEAL IS DISMISSED.

END OF FILE.