Appeal of MARIA CONDE, on behalf of her children ELEANOR and JOSUE GUZMAN, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 15,711

(January 14, 2008)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that her children, Eleanor and Josue, are not district residents.  The appeal must be dismissed.

It is undisputed that petitioner’s husband owns a house located on Roger Street in Hempstead, New York, within respondent’s school district (“Uniondale home”), and that petitioner and her family are living on Maryland Avenue in Hempstead, outside of respondent’s district. 

By letter dated September 10, 2007, respondent’s superintendent and its administrative assistant for central registration jointly notified petitioner and her husband that Eleanor and Josue were not district residents and, therefore, were not entitled to attend the district’s schools.  On September 28, 2007, a registration review conference was conducted.  By letter dated October 1, 2007, the administrative assistant for central registration reaffirmed the initial determination that Eleanor and Josue were not district residents.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 31, 2007.

Petitioner claims that her husband owns a house in respondent’s district and that this house is her permanent residence.  She claims that she and the children are temporarily residing outside of the district because her Uniondale home has been rented and states that she plans to return to the Uniondale home in June 2008.  Respondent claims that petitioner and her children reside outside of the district and consequently petitioner's children do not have the right to attend the district's schools free of charge.

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).  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).

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).

According to petitioner, in March or April 2007, petitioner’s husband moved to Florida to pursue a job opportunity.  Thereafter, petitioner and her husband leased the Uniondale home to tenants with the intent that petitioner and her two children would relocate to Florida to join petitioner’s husband when the children finished school in June.  However, in May 2007, petitioner’s husband returned to New York when the job opportunity did not work out.  Since their Uniondale home was rented, in July 2007, petitioner and her family moved into a friend’s house on Maryland Avenue in Hempstead, outside respondent’s district.  Petitioner alleges that she and her family plan to return to the Uniondale home when the lease expires on June 30, 2008.

At the registration review conference, however, petitioner and her husband stated that they were renting the Uniondale home due to financial difficulties and that they did not know when the family would be able to return to that residence.

The parties do not dispute the fact that petitioner’s husband owns a house in the district.  The issue in this appeal is whether or not petitioner's absence from the district is temporary.  Petitioner submits a number of documents in support of her claim that her permanent residence is within the district, including a tax bill and mortgage statements.  However, these documents have little probative value.  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).

Where evidence is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining residency, the determination will not be set aside (Appeal of Steinberg, 36 Ed Dept Rep 65, Decision No. 13,658).  The petition contains only conclusory statements by petitioner that her current residence is temporary.  Petitioner has failed to present evidence that the family’s move was temporary, that she has continuing ties to the district’s community or that she has attempted to relocate to respondent’s district.  Petitioner’s own statements at the registration review conference indicate that her future plans are unknown.

Therefore, based on the record before me, I cannot conclude that respondent’s determination was arbitrary or caprious.  If, at some future date, petitioner and her children do relocate to an address within the district, petitioner may reapply for the children’s admission.

THE APPEAL IS DISMISSED.

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