Appeal of L.L., on behalf of her child, from action of the Board of Education of the City School District of the City of White Plains regarding residency.

Decision No. 18,315

(July 31, 2023)

Keane & Beane, P.C., attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the City School District of the City of White Plains (“respondent”) that her child (the “student”) is not a district resident.  The appeal must be dismissed. 

Prior to the events leading to this appeal, petitioner and the student resided within respondent’s district.  In or around February 2023, petitioner moved to an apartment located outside of the district (the “out-of-district address”). 

In March 2023, respondent engaged a private investigator to conduct a residency investigation.  The investigator spoke with the property manager of the out-of-district address, who indicated that petitioner and the student resided therein.

By letter dated March 23, 2023, respondent notified petitioner of its suspicion that the student may not be a resident of respondent’s district.  Respondent invited petitioner to submit information concerning the student’s right to attend school in the district.  On April 6, 2023, petitioner contacted respondent and asserted that the student lived with his aunt and uncle at their home within the district (the “in-district address”).  Later that day, a district employee provided the petitioner with a “care and custody and control form.”  Petitioner did not return a completed copy of this form to respondent.

During April 2023, respondent’s investigator surveilled the out-of-district address on three separate occasions.  Each time, the student was observed exiting the out-of-district address and entering a car driven by petitioner; thereafter, he was dropped off at one of respondent’s high schools.

By letter dated April 17, 2023, respondent advised petitioner that it had determined that the student did not reside within the district and would be excluded as of May 1, 2023. This appeal ensued.  Petitioner’s request for interim relief was granted on May 11, 2023.

Petitioner contends that the student resides at the in-district address and that she has surrendered temporary parental control to the aunt and uncle.  In support thereof, she submits a document dated April 24, 2023 that purports to transfer custody of the student to his aunt and uncle.  Petitioner requests a determination that the student is a district resident entitled to attend its schools without payment of tuition.[1]

Respondent contends that petitioner resides at the out-of-district address and has not proven a total transfer of custody and care of the student to his aunt and uncle. 

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).

Generally, if a child’s parent or legal guardian continues to provide financial support for the child’s room, board, clothing, and other necessities, the parent or guardian has not relinquished custody and control (see Catlin v Sobol, 77 NY2d 552, 562-562 [1991]; Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where the child’s parent or legal guardian retains decision-making authority over important matters such as the child’s medical care or education, a total transfer of custody and control has not occurred (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin, 77 NY2d at 562).

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).

It is undisputed that petitioner resides at the out-of-district address.  As such, the student can only be considered a district resident if petitioner has demonstrated a total transfer of custody and control to the student’s aunt and uncle.  

Petitioner has not met this burden.  Petitioner submits a transfer of custody document dated April 24, 2023 that is, by its own terms, “temporary.”  Moreover, this document states that petitioner will retain joint legal custody over the student.  Petitioner also asserts in the petition that she “continue[s] [to provide] financial support and [is] still very present and active with the care and provision for [the student].”  As such, petitioner has not demonstrated a complete transfer of custody and control of the student to his aunt and uncle.  Thus, his residence remains with petitioner, who resides outside respondent’s district (see Appeal of D.M. and J.D., 61 Ed Dept Rep, Decision No. 18,031; Appeals of P.B., 59 id., Decision No. 17,698; Appeals of T.M., 58 id., Decision No. 17,496).

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

THE APPEAL IS DISMISSED. 

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