Appeal of RACHAEL GARRISON, on behalf of her daughter RILEY MCLAUGHLIN, from action of the Board of Education of the Nanuet Union Free School District regarding residency.

Decision No. 17,410

(June 14, 2018)

Mario L. Spagnuolo, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Nanuet Union Free School District (“respondent”) that her daughter (the “student”) is not a district resident.  The appeal must be dismissed.

Prior to the events described in this appeal, the student attended school in respondent’s district.  In September 2017, respondent’s registrar received information that the student no longer resided in the district.  An investigation was conducted, including surveillance, which indicated that petitioner and the student lived at an address in Tomkins Cove, New York (the “out-of-district address”).  According to an affidavit from the registrar, the superintendent sent a letter informing petitioner that the student’s residency was in question and provided petitioner an opportunity to submit information regarding her residency.  It does not appear that petitioner submitted any information to respondent.  A subsequent letter was sent notifying petitioner of the determination that she and her daughter were not district residents.

On September 25, 2017, respondent’s registrar received a letter from petitioner whereby petitioner stated that she and the student were “still at” an in-district address.  Petitioner further asserted that she had recently married and acknowledged that “[w]e now ... have a second adress [sic] that my husband owns ....”  The record indicates that petitioner attached certain documents to substantiate her claim of residency within respondent’s district.  According to petitioner, on October 3, 2017, respondent denied her request for her daughter “to remain within the Nanuet school district, for the remainder of her senior year.”  This appeal ensued.  Petitioner’s request for interim relief was denied on October 13, 2017.

Notwithstanding the information she provided to the district, petitioner asserts in this appeal that the student will reside with her aunt at another address located within respondent’s district.  Petitioner contends that she is in the process of transferring guardianship of the student to her aunt.  She submits a copy of the application in Rockland County Family Court for such transfer.

Respondent contends that petitioner has failed to establish that she has transferred custody and control of her daughter to the student’s aunt and that, therefore, petitioner failed to rebut the presumption that her daughter resides with her outside the district.  Respondent further asserts that the sole reason the student will reside with her aunt is to take advantage of respondent’s schools.  Respondent also contends that petitioner has not met her burden of proving that she resides within the district.

Education Law §3202(1) provides, in pertinent part, as follows:

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).

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).

Here, petitioner has failed to establish that the student resides within respondent’s district.  As indicated above, a student is presumed to live with his or her parent unless there has been a total and permanent transfer of custody and control to another individual residing within the district.  On this record, petitioner has not established that such a transfer has occurred.  Petitioner submits an application to transfer guardianship to the student’s aunt.  In addition, an exhibit to the petition consists of a letter from the aunt to the district dated October 3, 2017, wherein the aunt indicates that she is “currently in the process of obtaining legal guardianship” of the student.  However, petitioner submits no evidence indicating that the application has been granted.  There is no other evidence indicating that custody and control has been transferred to the student’s aunt.  On this record, petitioner has not established that she effectuated a total and permanent transfer of custody and control of the student to the student’s aunt.  Accordingly, petitioner has not rebutted the presumption that her daughter resides with her.

Petitioner admits in her petition that she resides at the out-of-district address.  This is consistent with respondent’s surveillance evidence.  Therefore, there is no basis in the record to conclude that the student resides within respondent’s district, and the appeal must be dismissed.  I note that petitioner retains the right to reapply for admission on behalf of the student at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE