Appeal of DANA M. MULLEN, on behalf of her son NASIR FANFAN, from action of the Board of Education of the Elmont Union Free School District regarding residency.

Decision No. 15,605

(July 12, 2007)

Colum P. Nugent, Esq., attorney for respondent

AHEARN, Acting Commissioner.--Petitioner challenges the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that her son, Nasir, is not a district resident.  The appeal must be sustained.

By letter dated March 28, 2006, respondent’s superintendent advised petitioner that a determination had been made that Nasir was not a district resident and that he would be excluded from district schools effective April 7, 2006.

At petitioner’s request, a hearing was held on April 28, 2006 before an administrative review officer.  On June 12, 2006, the hearing officer issued a written determination finding that Nasir was not entitled to attend district schools because he did not reside within the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on September 20, 2006.

Petitioner contends that Nasir is a resident of respondent’s district and is entitled to attend its schools tuition-free.  Respondent maintains that its determination that petitioner and Nasir are not district residents is not arbitrary or capricious.

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).

At the hearing, petitioner testified that she had moved into the home of her sister within the district in January 2005 and enrolled Nasir in respondent’s Dutch Broadway Elementary School.  Prior to that, petitioner lived with Nasir in her mother’s home in Queens.  At the hearing, petitioner testified that she worked full-time, attended school and was a single mother.  She testified that she relied on her mother in Queens for child care and that Nasir slept over at her mother’s home when she had to work or study late.  Petitioner produced a notarized letter from her sister stating that she lives with her and pays $300 per month toward expenses.  Petitioner also submitted a loan statement, a credit union statement, and a TAP award certificate all dated August, 2005, and an insurance bill dated March, 2006, all of which reflect the sister’s address in Elmont.

The district relied on surveillance that was conducted on eight occasions between January 27 and April 10, 2006.  On five mornings, no one was observed exiting the Elmont home; however, Nasir was in attendance at school on those days.  On two mornings, Nasir was observed as he exited the Queens residence, entered a car and was driven to school.  On one afternoon, an investigator watched Nasir leave school, walk to the Elmont address, where he was picked up at 5:06 p.m. and driven to the Queens address.  The investigator maintained surveillance until 9:05 p.m. and did not observe the child leave the Queens house.

Respondent’s observation of Nasir at his grandmother’s home in Queens is not inconsistent with petitioner’s testimony that Nasir’s grandmother helps with child care.  The mere fact that Nasir may have stayed overnight in Queens on more than one occasion, which petitioner admits, is insufficient to overcome the presumption that he resides with his mother.

Petitioner alleges that she resides with her sister in Elmont and produced several documents listing that address.   Respondent, on the other hand, fails to provide any evidence that petitioner resides anywhere other than Elmont.  The surveillance evidence contains no record of petitioner’s whereabouts at any point in time.

Accordingly, based on the record before me, I find that respondent’s determination that petitioner’s son is not a district resident is arbitrary and capricious and must be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Nasir Fanfan to attend school in the Elmont Union Free School District without the payment of tuition.

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