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Decision No. 15,439

Appeal of MICHELLE COOKS, on behalf of her daughter CHALLIS, from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.


Decision No. 15,439


(August 7, 2006)


Hodgson Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cleveland Hill Union Free School District (“respondent”) that her daughter, Challis, is not a district resident.  The appeal must be dismissed.

In September 1998, Challis began attending school in respondent’s district.  The documentation petitioner submitted at the time indicated that she and her children were residing with her sister and brother-in-law within the district.

In the fall of 2005, the district began an investigation to determine whether Challis was a district resident.  An investigator hired by the district conducted surveillance on six dates between December 6, 2005 and January 11, 2006.  On the first three dates, the surveillance revealed that Challis did not leave from the district residence on school mornings.  On the last two surveillance dates, however, the investigator saw Challis leaving her father’s residence outside the district and being dropped off at respondent’s middle school.

By letter dated January 31, 2006, respondent’s superintendent advised petitioner that Challis would be excluded from respondent’s schools as of February 10, 2006.  On February 6, 2006, Challis’s father met with the district’s registrar.  He stated that he and petitioner are informally separated and that he lives outside the district.  He acknowledged, however, that petitioner occasionally spends the night at his residence and that they file a joint tax return using his address.

On February 7, 2006, petitioner met with the district’s registrar.  Petitioner stated that she had no documentation showing that she resided with her sister.  She indicated that she divides her time between the two residences and acknowledged that she filed a joint tax return from her husband’s address.  At the registrar’s request, petitioner presented her driver’s license, which showed her address as her husband’s, outside the district.

Petitioner acknowledges that she and Challis spend time at the residence of Challis’s father outside the district, but she asserts that they are district residents because they also live part-time in her sister’s home within the district.  Petitioner further contends that she and her husband have unofficially surrendered Challis’s parental control to her aunt and uncle.  Respondent contends that its decision that Challis is not a district resident is supported by the surveillance report, the admissions by petitioner and her husband, and petitioner’s inability to provide documentation of residence within the 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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

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 L.P., 43 Ed Dept Rep 12, Decision No. 14,901; Appeal of Hardick, 41 id. 300, Decision No. 14,693).  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 Sloley-Raymond, 44 Ed Dept Rep 27, Decision No. 15,085; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).

     A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  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 (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Petitioner offers no documentary evidence that she resides with her sister within the district, and she acknowledged to the district’s registrar that she uses an address outside the district for her income tax return and driver’s license.  Based on the record before me, I find that petitioner has not met her burden of establishing that she resides within the district.

     Petitioner has also not met her burden of establishing that Challis resides with her aunt and uncle within the district.  Although petitioner asserts that she informally surrendered parental control to the aunt and uncle, she admits that they do not have full responsibility with respect to Challis’s support and custody.  To the contrary, she admits that Challis’s father provides her clothing, medical and other personal expenses, and she acknowledges that they exercise shared control over her activities and behavior.  In addition, the surveillance report shows Challis leaving her parents’ address outside the district on two school mornings.  Accordingly, petitioner has failed to rebut the presumption that Challis resides with her parents.

In sum, I cannot conclude on the record before me that respondent acted arbitrarily or capriciously in determining that Challis resides with her parents outside the district.