Appeal of A.C., on behalf of his daughter A.C., from action of the Board of Education of the Mamaroneck Union Free School District regarding residency.

Decision No. 17,888

(July 30, 2020)

Ingerman Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Mamaroneck Union Free School District (“respondent”) that his daughter, A.C. (“the student”), is not a district resident.  The appeal must be dismissed.

According to petitioner, he and the student previously resided together at a residence located within respondent’s district (the “in-district address”), which they shared with petitioner’s girlfriend.  Petitioner enrolled the student in respondent’s schools in August 2018.  The record reflects that the student’s mother resides outside of respondent’s district in Yonkers, New York.

On January 21, 2019, a judge signed a temporary order of protection ordering petitioner to stay away from the student until June 30, 2019.  Upon learning of the temporary order of protection, respondent contacted petitioner and inquired as to the student’s residency status.  Petitioner indicated that he was currently living outside of respondent’s district but would return to the in-district address “within the near future.”  In or about February 2019, the Westchester County Department of Social Services (“DSS”) advised respondent that the student was residing with her mother outside the district and being driven to school by her grandfather.  Nevertheless, respondent allowed the student to remain enrolled in its schools based upon petitioner’s representation that the temporary order of protection “would cease in the near future.”

In or about December 2019, respondent became aware that Westchester County Family Court had issued another order of protection on November 4, 2019, ordering petitioner to stay away from the student until November 4, 2020.  The order of protection further ordered that petitioner stay away from the student’s home and school and refrain from communicating with the student, except when supervised by DSS or the student’s mother.  According to respondent, the student “remained living with her mother” during this time.

By letter dated December 10, 2019, respondent’s assistant superintendent for business operations (“assistant superintendent”) informed petitioner that she had reason to believe that the student was not a district resident.  The letter advised petitioner that the student would be excluded from the district’s schools after December 27, 2019 unless petitioner elected to meet with the assistant superintendent and present additional evidence regarding the student’s residency.

On December 18, 2019, the student’s mother and petitioner’s girlfriend met with the assistant superintendent.  Petitioner did not attend the meeting.  According to respondent, the student’s mother and petitioner’s girlfriend indicated that petitioner was currently residing outside of the district but intended to move back to the district “at the end of January or March 2020.”  The student’s mother and petitioner’s girlfriend additionally stated that the student “wanted to remain enrolled” in respondent’s schools and “would therefore live” with petitioner’s girlfriend at the in-district address.

By letter dated December 18, 2019, the assistant superintendent advised petitioner that the student would be excluded from respondent’s schools as a non-resident at the end of the day on December 27, 2019.  The assistant superintendent stated that petitioner had “not provided sufficient evidence to support [the student’s] residency” within the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 15, 2020.

Petitioner contends that he and the student are district residents but that he is temporarily residing outside of the district at different locations pending the expiration of the order of protection.  Petitioner asserts that the student physically resides at the in-district address with his girlfriend.  In support of this contention, petitioner submits a document entitled “Temporary Custody Agreement,” in which he and the student’s mother granted petitioner’s girlfriend “temporary custody” of the student.  Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent argues that the decision to exclude the student from its schools was rational and that petitioner has not established that he made a permanent and total transfer of custody of the student to petitioner’s girlfriend or any other district resident.

I must first address a procedural matter.  By letter dated January 24, 2020, petitioner submitted copies of two custody petitions dated January 17, 2020, which petitioner’s girlfriend filed in Family Court against petitioner and the student’s mother, respectively, for custody of the student.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I have accepted this submission as it is relevant to the claims raised herein, was not available at the time of the petition, and its acceptance will not result in prejudice to respondent, which does not object to its admission (Appeal of Thomas, 54 Ed Dept Rep, Decision No. 16,669).

Turning to the merits, 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).  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 Begum, 55 Ed Dept Rep, Decision No. 16,799; Appeal of Cheng, 47 id. 366, Decision No. 15,726).

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).

Here, petitioner has not met his burden of proving that respondent’s determination was arbitrary or capricious.  Even assuming, arguendo, that petitioner resides within respondent’s district,[1] the student cannot legally reside with petitioner by virtue of the November 4, 2019 order of protection, which remains in effect until November 4, 2020.  Thus, petitioner’s parental presumption of residency has been rebutted.

As indicated above, the student’s mother resides outside of respondent’s district in Yonkers, New York.  Although petitioner maintains that the student resides at the in-district address with his girlfriend, I find that he has failed to rebut the presumption that the student’s residence is with her mother.  The “Temporary Custody Agreement” submitted with the petition is, on its face, not a permanent or total transfer of custody and control of the student to petitioner’s girlfriend (Appeal of Romero, 58 Ed Dept Rep, Decision No. 17,599; Appeal of Burova, 56 id., Decision No. 16,979; Appeal of Polynice, 48 id. 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  Moreover, the “Temporary Custody Agreement” merely authorizes petitioner’s girlfriend “to care for [the student] in her home”; it fails to establish the student’s intent to reside at the in-district address with petitioner’s girlfriend permanently (Appeal of Romero, 58 Ed Dept Rep, Decision No. 17,599; Appeal of Burova, 56 id., Decision No. 16,979).

Nor does the filing of the January 2020 petition for custody in Family Court constitute a permanent transfer of custody and control of the student to petitioner’s girlfriend.  Although petitioner’s girlfriend is apparently seeking permanent custody of the student, there is no evidence in the record indicating that petitioner’s girlfriend has, in fact, been awarded permanent custody.  To the extent petitioner argues that his girlfriend currently exercises custody and control over the student, there is no evidence in the record to support such a finding other than petitioner’s conclusory statements.  Contrary to petitioner’s assertions that the student has continued to reside with his girlfriend at the in-district address, respondent indicates that it was advised by DSS that the student was residing with her mother.  Indeed, respondent avers that the student’s mother and petitioner’s girlfriend advised the assistant superintendent that the student merely “would” reside with petitioner’s girlfriend because she “wanted to remain enrolled” in the district’s schools.  As noted above, where the sole reason a child is residing with someone other than a parent is to take advantage of the district’s schools, the child has not established residence within the district (see e.g. Appeal of R.S.K., 58 Ed Dept Rep, Decision No. 17,573).  Therefore, on this record, petitioner has failed to demonstrate that he and the student’s mother have permanently transferred custody and control of the student to his girlfriend.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for the student’s admission to the district at any time, should circumstances change, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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