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Decision No. 14,917

Appeal of J.T., on behalf of her daughter T.T., from action of the Board of Education of the Nyack Union Free School District regarding residency.



(August 12, 2003)


Ellen B. Holtzman, Esq., attorney for petitioner


Ingerman Smith, L.L.P., attorneys for respondent, Deborah Richardson De Cuevas, Esq., of counsel


CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Nyack Union Free School District ("respondent") that her daughter, T.T., is not a district resident.  The appeal must be dismissed.

From 1996 through September 2002, petitioner, her husband, T.T. and another daughter resided in respondent"s district on Bliss Lane in Valley Cottage, New York.  On September 9, 2002, a school nurse observed a moving van at petitioner"s address and apparently reported this to school officials.  Respondent"s Director of Pupil Services ("director") contacted petitioner, who informed her that petitioner"s husband had moved out of the district, but that petitioner, T.T. and her older daughter were moving into her sister"s apartment on Depew Avenue, Nyack, in the district.  Thereafter, petitioner submitted a residency affidavit stating that she and her daughters had been living in Nyack with her sister for one week.  She also submitted an affidavit from the landlord verifying that he had leased the Nyack apartment to petitioner"s sister.

Later in September, it came to the district"s attention that the Nyack apartment was actually under construction.  In addition, on September 26, 2002, a guidance counselor informed the director that petitioner had told her she was living in Stony Point, outside the district.  A district social worker sent to the Nyack apartment found it to be unlivable.  Thereafter, the landlord stated that the apartment would not be completed until Thanksgiving. 

On October 1, 2002, the director hired a private investigator.  The investigator determined that, as of September 2002,  petitioner"s husband resided at the Stony Point address.  On October 3, 2002, petitioner submitted a second residency affidavit, this time stating that she had sole custody of T.T. and that the family had been living on Valley Road in Valley Cottage for three weeks.  Petitioner also submitted an affidavit from a different landlord who stated that she was permitting petitioner, her sister, and their respective children to live with her on Valley Road. 

The director chose to wait until after the Thanksgiving holiday, when the Depew Avenue apartment was scheduled to be completed, to determine if petitioner obtained permanent residence within the district.  In early December, the director found that construction had not been completed, petitioner"s sister had moved to another property, and that petitioner was living at the Stony Point address.  Videotaped surveillance of the Stony Point residence revealed T.T. leaving that residence in the early morning on two school days in December.

     By letter dated January 13, 2003, the director notified petitioner and her husband of her determination that the family did not reside within the district.  Although district policy permitted petitioner"s older daughter to complete her senior year at Nyack High School, T.T. was to be excluded from Nyack Middle School on January 31, 2003.  Petitioner sought permission to pay tuition for T.T. to remain in school until the end of the school year.  In accordance with district policy, the director rejected this request.  This appeal ensued.  Petitioner"s request for interim relief was denied on February 7, 2003.

Petitioner states that she lives in Stony Point and that is T.T."s primary residence.  However, she asserts that T.T. intends to reside within the district with her aunt until the end of the school year. She argues that because T.T. needs services outlined in her individualized education plan ("IEP"), it would be detrimental to her educational, emotional and developmental progress to change schools.  Respondent contends that the petition fails to state a claim upon which relief may be granted because petitioner admits that she is not a district resident and that T.T. is living with her aunt solely to take advantage of the educational services in respondent's district.

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 Hutchinson, 42 Ed Dept Rep ___, Decision No. 14,865; Appeal of Vazquez, 42 id.    , Decision No. 14,841; Appeal of L.W., 41 id. 372, Decision No. 14,717).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Vazquez, supra; Appeal of L.W., supra; Appeal of Donohue, 41 Ed Dept Rep    26, Decision No. 14,601).  This presumption can be rebutted where it is shown that total custody and control are relinquished to someone residing within the district (Appeal of Maxwell, 42 Ed Dept Rep ___, Decision No. 14,799; Appeal of Epps, 39 id. 778, Decision No. 14,377).  However, where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Hutchinson, supra; Appeal of Cuesta, 42 Ed Dept Rep, Decision No. 14,755; Appeal of Marbury, 41 id. 119, Decision No. 14,634).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Newby, 42 Ed Dept Rep ___, Decision No. 14,790; Appeal of Leontakianakos, 42 id. ___, Decision No. 14,757).  In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of B.O. and D.O., 42 Ed Dept Rep ___, Decision No. 14,769; Appeal of Teri, 41 id. 95, Decision No. 14,626).

Although respondent afforded petitioner numerous opportunities to demonstrate that she resides in the district, p etitioner now admits that she lives at the Stony Point address outside the district.  She also admits that T.T. lives primarily at that address and intends to reside there on weekends, but also intends to reside with petitioner"s sister at Sierra Vista Lane in Valley Cottage for the remainder of the 2002-2003 school year.  Petitioner concedes, however, that she provides financial support for T.T."s food, shelter, and clothing, she exercises control over T.T."s activities and behavior, and she has not surrendered parental control to her sister.  In addition, it appears that the sole reason T.T. is residing with petitioner's sister is to attend school in respondent"s district.  As discussed above, residence is not established in such circumstances.  Thus, respondent"s determination was neither arbitrary nor capricious and will not be overturned.