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Decision No. 15,558

Appeal of PETAR and MANDA JANKOVIC, on behalf of their children JAK and JOANNA, from action of the Board of Education of the Eastchester Union Free School District regarding residency.

Decision No. 15,558

(March 30, 2007)

Keane & Beane, P.C., attorneys for respondent, Lawrence Praga and Aileen Noonan, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Eastchester Union Free School District (“respondent”) that their children, Jak and Joanna, are not district residents.  The appeal must be dismissed.

On August 26, 2005, petitioners purchased a home on Bell Road in the district.  When petitioners registered their children in the district, they indicated they would not be residing at the Bell Road address for approximately three months because the house would be undergoing renovations and the previous owner’s tenant still resided there.  In the interim, petitioners indicated that they would be staying with the children’s grandparents, who are district residents.  Based on this information, the district admitted petitioners’ children.

In October 2005, district officials apparently learned that petitioners would not be moving into the Bell Road house until March 2006.  During the fall and winter, the district conducted surveillance at petitioners’ previous residence in the Bronx and at the grandparents’ house.  The surveillance revealed the children departing for school from both of those addresses, but not from Bell Road.

By letter dated May 3, 2006, sent to the Bronx address, the district’s Assistant Superintendent of Pupil Personal Services (“assistant superintendent”) notified petitioners of her determination that the children did not yet reside within the district, that their residence continued to be in the Bronx as it had been since September 2005, and that the children would be excluded from the district’s schools effective May 12, 2006.

By letter dated May 10, 2006, petitioners explained that they had intended in good faith to move into the new house as soon as possible after purchasing it in August 2005; however, the tenant did not vacate the premises until April 1, 2006 and the permit for renovation had just been approved.  They stated that the children had been residing with their grandparents and they hoped to move in by the end of August 2006.

By letter dated May 15, 2006, the assistant superintendent responded that she would request that the superintendent consider letting the children remain in school until the end of the school year.  In the interim, she directed the business office to calculate the tuition owed for the 2005-2006 school year.  By letter dated May 17, 2006, the superintendent informed petitioners that the children would be excluded from the district’s schools effective June 30, 2006 pending proof of petitioners’ legal residency.  He also informed them of the amount of tuition due the district for the 2005-2006 school year.

This appeal ensued.  Petitioners’ request for interim relief was denied on September 13, 2006.

Petitioners request a determination that their children are district residents and are entitled to attend the district’s schools without the payment of tuition.  Respondent contends that the appeal is untimely, that petitioners do not reside in the district, that they have not surrendered custody and control of the children to their grandparents, and that there is no legal provision for secondary guardianship.

     An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The superintendent’s final determination letter was dated May 17, 2006.  However, the letter was sent via certified mail to the Bronx address and was returned unclaimed.  Petitioners assert that they did not actually receive the letter until August 8, 2006 by facsimile.  Under these circumstances, therefore, I am constrained to find that the appeal is timely.

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).

     In an appeal to the Commissioner, a 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; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

     Petitioners admit that during the 2005-2006 school year they resided at times at their former residence in the Bronx and that renovations on the Bell Road house were not due to be completed until September 22, 2006.  The record further reveals that the former tenant did not vacate the house until April 1, 2006 and petitioners did not receive notice of approval of their building license until May 2006.  Surveillance also revealed the children leaving for school from both the Bronx address and the grandparents’ residence, but never from Bell Road.  Based on the record and their admissions, petitioners have failed to demonstrate that they resided in the district during the 2005-2006 school year.

Petitioners likewise have failed to rebut the presumption that their children’s residence is with them outside the district.  Petitioners contend, in the alternative, that the children are district residents because their grandparents, who reside in the district, are the children’s secondary guardians.  However, petitioners admit that they have not surrendered parental control of their children to the grandparents.  Furthermore, the record and surveillance contradict the assertion that the children were with their grandparents exclusively.  Petitioners provide no legal authority for the concept of secondary guardianship, and indeed, there is none.

Petitioners also contend that the children are entitled to attend school in the district because they own a home and they have paid property and school taxes.  However, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of O’Herron, 41 id. 1, Decision No. 14,591; Appeal of Smith, 40 id. 126, Decision No. 14,438).  Pending home construction does not, in and of itself, establish residency (Appeal of Geithner, 43 Ed Dept Rep 450, Decision No. 15,047; Appeal of Sobel, 43 id. 93, Decision No. 14,931).  I note however, that if respondent allows nonresident students to attend its schools upon the payment of tuition, petitioners would be entitled to a reduction in that tuition pursuant to Education Law §3202(3) to the extent they paid taxes on the Bell Road home (seee.g.Appeal of Rosen, 43 Ed Dept Rep 87, Decision No. 14,929).

Accordingly, on the record before me, I find no basis to set aside respondent’s determination.  If petitioners and their children eventually move into the Bell Road house they may reapply for their children’s admission to the district.

I have considered petitioners’ remaining arguments and find them without merit.