Appeal of HEIDI BROWN, on behalf of her son DONALD DARDEN, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 15,778

(July 9, 2008)

Kehl, Katzive & Simon, LLP, attorneys for respondent, Terri E. Simon, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that her son, Donald, is not a district resident.  The appeal must be dismissed.

Petitioner states in her petition that she lives at South 12th Avenue, Mount Vernon, outside the New Rochelle district.  Donald, a tenth grader, resides with his grandmother at Glencar Avenue, within the district.  It appears that Donald has attended district schools since kindergarten.

In November 2007, respondent’s Director of Pupil Services learned that mail from the district addressed to petitioner at the Glencar Avenue address was being returned marked “not deliverable as addressed.”  In January 2008, the Director initiated a series of early morning visits by an attendance teacher to the Glencar Avenue address to determine whether or not petitioner actually lived there.  Petitioner was not present on any of those early morning visits.

On March 8, 2008, the Director sent a letter inviting petitioner to submit information concerning her residency.  On March 26, the Director met with petitioner, and petitioner admitted that she had legal custody of her son, and further admitted that for approximately 18 months she had lived in Mount Vernon.

By letter dated April 4, 2008, the Director advised petitioner that Donald was not a district resident, was not entitled to attend district schools, and would be excluded as of April 18, 2008.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 25, 2008.

Petitioner states that Donald has attended district schools since kindergarten, and has lived with his grandmother for a number of years.  She states that Donald’s grandmother is better equipped to care for him than she is.  She alleges that she has “given guardianship” of her son to Donald’s grandmother, but presents no evidence to support that claim.

Respondent contends that petitioner admits in her petition that she lives outside the district, that Donald’s legal residence is therefore with petitioner, and that Donald is not entitled to attend district schools.  Respondent also notes that currently the district does not admit non-resident students, even on a tuition-paying basis.

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 (seeCatlin 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 (seeAppeal of Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of Nelson, 44 id. 20, Decision No. 15,082).

Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of Chorro, 44 id. 50, Decision No. 15,095; Appeal of J.T., 43 id. 63, Decision No. 14,917).

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).

Petitioner has failed to rebut the presumption that Donald’s legal residence is with her, outside respondent’s district.  It appears that at one time Donald’s grandmother did have legal custody of him, but it is clear that she is no longer his legal guardian.  There is no proof that petitioner has completely surrendered custody and control, and there is no indication that petitioner does not provide support for her son.

In her reply, petitioner suggests that she is in the process of transferring legal custody to Donald’s grandmother, but there is no evidence such a transfer has occurred.

Based upon the record before me, I cannot conclude that respondent acted arbitrarily or capriciously in determining that Donald is not a district resident.  While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Donald’s behalf in the future, should circumstances change, and to present any new information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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