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Decision No. 15,444

Appeal of GINA SPECKMAN, on behalf of her daughter ALEXIS, from action of the Board of Education of the Putnam Valley Central School District regarding residency.

 

Decision No. 15,444

 

(August 21, 2006)

 

Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorneys for respondent, Thomas Scapoli, Esq., of counsel

 

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Putman Valley Central School District (“respondent”) that her daughter, Alexis, is not a district resident.  The appeal must be dismissed.

 Petitioner and her husband reside in Mahopac, New York outside of respondent’s district.  Prior to moving to Mahopac, petitioner claims that she and Alexis resided with her parents in Putnam Valley, New York where they were district residents. 

By letter dated January 5, 2006, respondent’s Director of Special Education and Student Services advised petitioner that Alexis did not meet district residency requirements.  By letter dated January 13, 2006, the superintendent notified petitioner that as of January 27, 2006, Alexis would not be allowed to attend classes within the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 17, 2006.

Petitioner claims that Alexis continues to reside with her grandparents three to four days a week, and that she intends to remain there for one year due to her parents’ work schedules and because petitioner does not want to disrupt her daughter’s routine.  During the remainder of the week, petitioner admits that Alexis resides with her in Mahopac.  Petitioner argues that Alexis is a resident of respondent’s district by virtue of the time she spends at her grandparents’ house.  In addition, petitioner, who claims to have grown up in respondent’s district, states that her residency in Mahopac is temporary, and that she and her husband are looking to purchase a home within respondent’s district.  Finally, petitioner alleges that forcing Alexis to attend school in Mahopac would disrupt her routine.

Respondent claims that petitioner has failed to rebut the presumption that Alexis resides with her parents.   In addition, respondent asserts that its determination was supported by the findings of its private investigator, and that petitioner had an adequate opportunity to provide evidence of her daughter’s residency. 

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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

 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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

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).

The record in this case does not support petitioner’s contention that her daughter resides with her grandparents in respondent’s district.  There is nothing in the record to suggest that petitioner has relinquished custody or control of her daughter.  To the contrary, petitioner admits that her daughter continues to reside with her and her husband during at least a part of each week, and that this arrangement was intended to last for only one year.  I cannot find, therefore, that petitioner has rebutted the presumption that her daughter resides with her.

Nor does petitioner’s allegation that her residence in Mahopac is temporary persuade me that her daughter is a resident of respondent’s district.  A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).    Although petitioner suggests that she intends to return to the district, she has failed to supply evidence demonstrating progress toward achieving that objective.

Finally, the fact that a student may have some difficulty adjusting to a new school, is an insufficient basis for overturning respondent’s decision  (seeAppeal of Marsten, 34 Ed Dept Rep 105, Decision No. 13,247).  While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of her daughter at any time should circumstances change (Appeal of Agee, 45 Ed Dept Rep 331, Decision No. 15,338; Appeal of Torres, 45 id. 170, Decision No. 15,292).  

 

THE APPEAL IS DISMISSED.

END OF FILE