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Decision No. 14,764

Appeal of D.R., on behalf of A.B. and D.E., from action of the Board of Education of the Eastchester Union Free School District regarding residency.

Decision No. 14,764

(August 2, 2002)

Keane & Beane, P.C., attorneys for respondent, Susanna Mould, Esq., of counsel

Petitioner appeals the determination of the Board of Education of the Eastchester Union Free School District ("respondent") that her children, A.B. and D.E., are not district residents. The appeal must be dismissed.

Petitioner"s children have been enrolled in respondent"s schools for a number of years based on petitioner"s representation that she and the children live with petitioner"s mother within the district. At some point during the 2001-2002 school year, respondent"s staff began to suspect that petitioner had moved out of the district. By letter dated January 22, 2002, respondent"s director of pupil personnel services informed petitioner that a question had arisen regarding her residency. In February 2002, the director spoke with petitioner and a Westchester County Mental Health Association caseworker regarding petitioner"s residency. By letter dated February 15, 2002, the director notified petitioner that a determination had been made that the children were not district residents. This appeal ensued and petitioner"s request for interim relief was denied on March 5, 2002.

Petitioner contends that she still resides with her mother, but that she currently lives in temporary respite housing outside the district. She contends that she shares custody of A.B. and D.E. with her mother and that the children continue to reside with her mother within the district. Petitioner asserts that changing schools would be detrimental to the children.

Respondent contends that the children reside with petitioner outside the district and that there is no evidence that petitioner"s relocation is temporary.

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 L.W., 41 Ed Dept Rep ___, Decision No. 14,717; Appeal of Pierre, 40 id. 538, Decision No. 14,551; Appeal of Epps, 39 id. 778, Decision No. 14,377). Residence for purposes of "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Bermudez, 41 Ed Dept Rep ___, Decision No. 14,712; Appeal of Santana, 40 id. 57, Decision No. 14,420; Appeal of Lavelanet, supra).

To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total transfer of custody and control to someone residing within the district (Appeal of Marbury, 41 Ed Dept Rep __, Decision No. 14,634; Appeal of Juarez, 39 id. 184, Decision No. 14,208; Appeal of Young and Billings, 39 id. 158, Decision No. 14,201). Where the parent continues to exercise custody and control of the children and continues to support them, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Beska, 39 id. 661, Decision No. 14,344). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Marbury, supra; Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Pernell, 30 id. 380, Decision No. 12,502), it is necessary to demonstrate that a particular location is the child's residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Marbury, supra; Appeal of Cron, 38 Ed Dept Rep 149, Decision No. 14,005; Appeal of Rivera, 38 id. 119, Decision No. 13,997).

Moreover, where the sole reason the children are residing with someone other than the parent is to take advantage of the schools of the district, the children have not established residence (Appeal of Marbury, supra; Appeal of Epps, supra; Appeal of Beska, supra). However, a child may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Juarez, supra; Appeal of Menci, 35 id. 61, Decision No. 13,465) or the hardships of single parenting (Appeal of Donohue, supra; Appeal of McMullan, 29 Ed Dept Rep 310, Decision No. 12,304). In such cases, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child is not determinative in resolving the question of the child"s residence (Appeal of Juarez, supra; Appeal of Lebron, 35 Ed Dept Rep 359, Decision No. 13,570).

In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Marilyn J., 41 Ed Dept Rep __, Decision No. 14,620; Appeal of Plesko, 37 id. 238, Decision No. 13,850). Petitioner submitted a 2001 W-2 form and Notice of Decision regarding Food Stamps that show her address as her mother"s residence within respondent"s district. Petitioner also submitted reply papers with a copy of what appears to be the initiation, in Westchester County Family Court, of a formal transfer of custody of the children to her mother. However, there is no evidence in the record that either a temporary or permanent custody order was issued.

Respondent submits an affidavit from a district teacher that recounts an incident where the teacher attempted to contact a responsible party to bring A.B. home. The teacher spoke to petitioner"s mother who refused to assist and stated that it was not her concern. Respondent also submits an affidavit from the school psychologist who states that petitioner sought new housing to become more independent and to better care for her children. The school psychologist also worked with several government agencies to obtain a housing assistance referral for petitioner. Respondent submits a letter from petitioner"s mother stating that the children have always resided with her, while petitioner has only lived with her intermittently.

Finally, respondent submits a letter it received from the Mental Health Association of Westchester County that attempts to explain petitioner"s situation. The letter indicates that petitioner"s living conditions at her mother"s house were less than ideal and that petitioner initially sought housing within respondent"s district, but was forced by time constraints to accept an apartment outside the district. It does not indicate that petitioner"s relocation is temporary.

Petitioner has failed to rebut the presumption that the children live with her. Petitioner admits that she has moved out of her mother"s house, yet fails to supply any evidence to support her claims that her move is temporary or that her mother has full custody and control of the children. Therefore, the evidence in the record is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioner"s children reside with petitioner outside respondent"s district. Where evidence is insufficient for me to conclude that respondent acted arbitrarily or capriciously in making a residency determination, the determination will not be set aside (Appeal of Mario D., 41 Ed Dept Rep __, Decision No. 14,600; Appeal of Digilio, 37 id. 25, Decision No. 13,795).

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the district for admission on her children"s behalf at anytime. Upon sufficient proof of the children"s residency within the district, the children would be entitled to attend the district"s schools on a tuition-free

basis (Appeal of Smith, 40 Ed Dept Rep 126, Decision No. 14,438).