Appeal of W.S., on behalf of her daughter S.M., from action of the Board of Education of the Gates-Chili Central School District regarding residency.

Decision No. 15,518

(January 23, 2007)

Goldstein, Ackerhalt & Pletcher, LLP, attorneys for respondent, Jay C. Pletcher, Esq., of counsel

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

Petitioner resides on Bowery Street within the Spencerport Central School district and is the part owner of a residence on Regina Drive within the district.

At the beginning of the 2006-2007 school year, petitioner enrolled S.M. in the district’s high school.  By letter dated October 24, 2006, respondent’s attendance/residency officer informed petitioner that he had determined that she was not a district resident and that S.M. was not entitled to attend school in the district.  This appeal ensued.

Petitioner alleges that S.M. resides with her grandmother (petitioner’s mother) on Regina Drive within the district and that she intends to reside there for at least three years.  Petitioner maintains that S.M. was unhappy while attending school in the Spencerport Central School District and will suffer irreparable harm if forced to attend school there.  Petitioner also argues that S.M.’s grandmother sustained injuries in a fall and that S.M. assists her with daily chores.  Petitioner requests that I determine that S.M. is a district resident.  Respondent maintains that S.M. is not a district resident.

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).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Nelson, 44 Ed Dept Rep 20, Decision No. 15,082).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (see Appeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

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 failed to rebut the presumption that S.M.’s residency is with her in the Spencerport Central School District.  In her petition, petitioner states that she resides in the Spencerport Central School District, that she has sole custody of S.M. and has not surrendered parental control of S.M. to her mother.  She states that both she and her mother support S.M., provide her with food, shelter and clothing and exercise control over her activities and behavior.  She also states that S.M. spends weekends with her in the Spencerport Central School District and occasionally visits her there during the week.  Based upon petitioner’s own admissions, petitioner has not relinquished custody and control of S.M.  Therefore, she has failed to rebut the presumption that S.M.’s residence is with her mother outside of the district.

Moreover, petitioner’s ownership of a home within the district is not determinative as to the question of S.M.’s residency.  The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of O’Herron, 41 id. 1, Decision No. 14,591; Appeal of Smith, 40 id. 126, Decision No. 14,438).

Accordingly, respondent’s determination was not arbitrary and capricious, and will not be set aside.

THE APPEAL IS DISMISSED.

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