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Decision No. 15,279

Appeal of LIZETTE REDWINE, on behalf of her children, SHAQUANA, MALEIK and MARQUIS, from action of the Board of Education of the Baldwin Union Free School District regarding student residency.

Decision No. 15,279

(August 12, 2005)

Ingerman Smith, L.L.P., attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that her children are not district residents. The appeal must be dismissed.

Petitioner's children have been attending respondent's schools since September 2003. In October 2004, respondent's administrators received information indicating that petitioner did not reside within the district. After an investigation, respondent's Director of Pupil Services ("Director") notified petitioner that her residency was in question. A meeting was held on November 24, 2004 at which petitioner had an opportunity to provide proof of residence within the district. By letter dated December 3, 2004, the Director notified petitioner that her children would be excluded from the district's schools effective December 10, 2004. This appeal ensued. Petitioner's request for interim relief was denied on December 30, 2004.

Petitioner contends that her children reside in Baldwin with her and that they spend two nights per week with their father who resides within the Wyandanch Union Free School District ("Wyandanch"). Petitioner asserts that the children stay overnight with their father because she attends school five nights per week and he sometimes takes them to his home. She also asserts that she is frequently at his house because she operates a day care center at that location. She also runs a day care business at the Baldwin address.

Respondent asserts that petitioner and her children reside outside the district and that its decision to exclude the children was not arbitrary, capricious or unreasonable.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). 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 L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

A person can have only one legal residence (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of O'Herron, 41 id. 1, Decision No. 14,591). A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id.

44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). 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 (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

In this case, petitioner has submitted evidence of a child support proceeding against the children's father, an account statement addressed to petitioner's day care business at the Baldwin address, a class schedule, a residential lease and other items addressed to petitioner at the Baldwin address, a telephone bill and a cablevision bill. She also submitted the New York State registration for her day care business at the Wyandanch address and a flyer for the day care business at the Baldwin address.

Respondent submitted the results of its investigation, consisting of surveillances on 20 separate days between October 14, 2004 and December 8, 2004. On almost every date, early morning observations showed petitioner and her children leaving the Wyandanch address and/or arriving at the Baldwin address.

The evidence submitted by petitioner does not establish that she resides at the Baldwin location, as it is also consistent with her operating a business from that location. Although the residential lease states that the premises may not be used for commercial purposes, petitioner provides evidence that she is nevertheless doing so. In addition, respondent's surveillance on numerous days over several months shows a consistent pattern of petitioner and her children living at the Wyandanch address. I therefore find respondent's determination to be neither arbitrary nor capricious.

THE APPEAL IS DISMISSED.

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