Appeal of CRYSTAL BREINER, on behalf of her child, from action of the Board of Education of the Commack Union Free School District regarding residency.

Decision No. 18,277

(May 23, 2023)

Lamb & Barnosky, LLP., attorneys for respondent, Mara N. Harvey, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Commack Union Free School District (“respondent”) that her child (the “student”) is not a resident of the district and, therefore, not entitled to attend the district’s schools tuition-free.  The appeal must be dismissed. 

Prior to the events leading to this appeal, petitioner and the student lived within the district and the student attended respondent’s schools as a district resident.  In April 2022, petitioner and the student relocated to a residence outside of the district.  By letter dated May 31, 2022, respondent informed petitioner of its determination that the student did not reside within the district.  Respondent indicated that it would allow the student to complete the 2021-2022 school year in its district, but that, unless the family returned to the district, the student could not attend its schools beginning in fall 2022.

On or about June 8, 2022, petitioner attempted to enroll the student in respondent’s schools for the 2022-2023 school year, alleging that she had transferred custody and control of the student to a family friend who resided within the district.

By letter dated June 15, 2022, respondent determined that the documents submitted by petitioner did not demonstrate a complete transfer of custody and control to the family friend.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 22, 2022.

Petitioner alleges that she has transferred custody and control of the student to the family friend.  She seeks a determination that the student is a district resident entitled to attend respondent’s schools tuition free.

Respondent argues that petitioner has failed to demonstrate a complete transfer of custody and control to the family friend.  As such, respondent contends that its residency decision was neither arbitrary nor capricious.

Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

The presumption that a child resides with his or her parent or legal guardian can be rebutted upon a determination that the parent or guardian has executed a total, and presumably permanent, transfer of custody and control of the child to a third party (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  Although a formal transfer of custody and control through a guardianship or Family Court proceeding is not required to establish a child’s residency for purposes of Education Law § 3202, the evidence must demonstrate that the child’s permanent residence is within the district and that the individual exercising custody and control of the child has full authority and responsibility with respect to the child’s support and care (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has failed to demonstrate a complete transfer of custody and control of the student to the family friend.  Affidavits executed by petitioner and the student’s father indicate that both petitioner and the family friend are responsible for the student’s day-to-day expenses and that the student’s father provides him with health insurance.  Petitioner further asserts in the petition that the student “visits with and speaks to his parents often” and that his parents “are very much involved in his life.”  Petitioner additionally states that the student intends to live with the friend for the next four years, “until college.”  These assertions do not demonstrate a total transfer of custody to the family friend (Appeals of T.M., 58 Ed Dept Rep, Decision No. 17,496, and appeals cited therein).[1]  As such, I decline to set aside respondent’s residency determination.

THE APPEAL IS DISMISSED.

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