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Decision No. 16,495

 

 Appeal of L.S. and S.G., on behalf ofM.W., JR., from action of the Board of Education of the Hyde Park Central School District regarding residency.

Decision No. 16,495

(July 1, 2013)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Daniel Petigrow, Esq.

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the Hyde Park Central School District (“respondent”) that M.W., Jr. (“M.W.”), is not a district resident. The appeal must be dismissed.

M.W. has attended school in respondent’s district since September 2011. L.S. is M.W.’s biological mother and

S.G. represents himself as M.W.’s step-father. Based on returned mail and information from the school, on November10, 2011, the Assistant Superintendent for Pupil Services for respondent board (“Assistant Superintendent”) notified petitioners that a residency hearing would be held on November 21, 2011 to determine whether M.W. was a resident of the district. The hearing was held on November 21,2011. By letter dated November 29, 2011, the Assistant Superintendent notified L.S. that she “reviewed the Custodial and Parental Affidavits provided, and that they do not meet the criteria in establishing care, custody and control by [M.G.]” and that her son was not entitled to attend respondent’s schools beyond December 23, 2011. This appeal ensued and petitioner’s request for interim relief was denied on December 30, 2011.

Petitioners allege that M.W. is entitled to attend respondent's schools because he is a resident of the district. Petitioners claim that M.W. lives with S.G. in the district due to L.S.’s health condition. Finally, petitioners assert that S.G. has full control over M.W.

Respondent contends that it properly determined that M.W. is not a district resident. Respondent maintains thatM.W.’s mother is not presently a resident of the districtand has not permanently transferred care, custody and control of M.W. to petitioner, S.G.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924). “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924). 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773). 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828). 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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioners have failed to demonstrate that M.W. is a resident of the district. Based on information in the record, at the residency hearing, L.S. admitted that she was not a district resident and that M.W. was living with S.G. because of her health condition and obligation to her current rental space.

While petitioners submitted a lease agreement to demonstrate that S.G. resides within the district, petitioners have failed to provide sufficient evidence to demonstrate that there had been a total transfer of custody and control of M.W. to S.G. To the contrary, according to the parental affidavit signed by L.S., petitioners are jointly responsible for matters relating to M.W.’s educational and medical care. Moreover, the custodial affidavit signed by S.G. reveals that petitioners are both responsible for food, clothing and other necessities for

M.W. and that they share responsibility for the child’s education and medical care.

On the record before me, petitioners have failed to demonstrate a permanent and total transfer of custody from

L.S. to S.G. Therefore, I find that petitioner has failed to establish that M.W. is a district resident and I cannot find respondent’s determination to be arbitrary or capricious.

While the appeal must be dismissed, I note that petitioners may reapply to the district for admission on the student’s behalf at any time and may present for respondent’s consideration any new information bearing on the question of residence – including any court order obtained from the Family Court.

THE APPEAL IS DISMISSED.

END OF FILE