Appeal of MICHELLE BISHOP, on behalf of her son JACKSON McSPIRIT, from action of the Board of Education of the Mayfield Central School District regarding residency.

Decision No. 17,851

(June 12, 2020)

Girvin & Ferlazzo, attorneys for petitioner, Erin Rose-Morris, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Mayfield Central School District (“respondent”) that her son, Jackson McSpirit (“the student”), is not a district resident.  The appeal must be dismissed.

Prior to the events giving rise to this appeal, the student attended respondent’s schools during a time that petitioner and the student lived with petitioner’s mother (i.e., the student’s grandmother) at an address within respondent’s geographical boundaries (the “in-district address”).

In or about November 2019, respondent’s superintendent received a report from the student’s bus driver that the student might not reside within the district.  The bus driver reported that, at the afternoon drop-off, the student often entered a waiting vehicle and departed the in-district address.

By letter dated December 9, 2019, the superintendent advised petitioner that her residency was under review and that she could submit proof of residency by December 30, 2019.  Petitioner failed to provide any such proof.

By letter dated January 22, 2020, the superintendent informed petitioner that, because she had failed to prove her residency, the student would be excluded from respondent’s schools effective January 31, 2020.  The superintendent additionally noted that petitioner had admitted to a school social worker that she was “living outside” the district.

According to the superintendent’s affidavit, the student continued to attend respondent’s schools beyond January 31, 2020.  Thus, in a letter dated February 3, 2020, the superintendent again apprised petitioner of his determination that she and the student were not residents of respondent’s district.  The superintendent informed petitioner that the student would be excluded from respondent’s schools effective February 7, 2020.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 2, 2020.

Petitioner asserts that the student resides with his grandmother at the in-district address from Tuesday afternoons until Friday afternoons “due to his father’s absence” and petitioner’s work schedule.  Petitioner indicates that the student intends to reside at the in-district address “for [six] more months.”  Petitioner further asserts that, although she has not surrendered parental control over the student to the grandmother, the grandmother provides food, shelter and clothing to the student and exercises control over the student’s activities and behavior.  Petitioner requests a determination that the student is a resident of respondent’s district and, thus, entitled to attend the district’s schools without the payment of tuition.

Respondent contends that its determination that the student is not a resident of the district is neither arbitrary nor capricious.  Respondent asserts that petitioner’s admissions that:  (1) she resides outside of respondent’s district; (2) she retains custody of the student; and (3) the student intends to reside at the grandmother’s in-district address for only six months collectively disprove her claim of residency.

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

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 M.V., 57 Ed Dept Rep, Decision No. 17,318).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of M.V., 57 Ed Dept Rep, Decision No. 17,318; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

The record supports respondent’s determination that the student is not a resident of respondent’s district.  First, petitioner affirmatively states that she has not transferred permanent custody or control of the student to the grandmother.  As such, the presumption that the student resides with petitioner has not been rebutted (Appeal of Students Suspected of Having a Disability, 51 Ed Dept Rep, Decision No. 16,283; see also Appeals of T.M., 58 id., Decision No. 17,496).

Moreover, the record reflects that petitioner admitted to a school social worker that she lives outside of respondent’s district.  Indeed, petitioner indicates in the petition that she resides at a location in Gloversville, New York, which is outside of respondent’s district.  Although petitioner submits copies of envelopes sent by a bank to various individuals at the in-district address, including the grandmother, petitioner fails to explain how this evidence establishes the student’s residence within the district.  The mere presence of the student with his grandmother at the in-district address for three days per week does not establish petitioner or the student’s presence within the school district, and petitioner has otherwise failed to provide any proof of residency within respondent’s district.  Therefore, based on the record before me, I cannot conclude that respondent’s determination that the student is not a district resident was arbitrary or capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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