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Decision No. 15,871

* Subsequent History: Matter of Board of Educ. of Lewiston-Porter Cent. School Dist. v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; December 16, 2009. *

Appeal of D.D., on behalf of her grandson M.D., from action of the Board of Education of the Lewiston-Porter Central School District regarding residency.

Decision No. 15,871

(February 19, 2009)

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

Webster Szanyi LLP, attorneys for respondent, Ryan G. Smith, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determinations made by the Board of Education of the Lewiston-Porter Central School District (“respondent”) that her grandson, M.D., is neither a district resident nor entitled to attend the district’s schools as a homeless student.  The appeal must be sustained in part.

It is undisputed that petitioner resides in respondent’s district and M.D.’s parents reside in Florida.  According to petitioner, in May 2008, M.D. left Florida to live with her and her husband (“grandparents”).

In early September 2008, petitioner requested M.D.’s enrollment in respondent’s schools.  Respondent contends that “[b]ased on the information provided to the district on September 15, 2008, the district denied petitioner’s request to enroll [M.D.] as a resident.”[1]  By letter dated September 15, 2008, respondent informed petitioner’s attorney that M.D. could only register in its schools as a nonresident student.

On or about October 7, 2008, respondent’s homeless liaison denied petitioner’s request to enroll M.D.  On that date, petitioner completed a form stating that she wished to appeal this decision on the grounds that M.D. “is living with me because of economical reasons.”  This appeal ensued.  Petitioner’s request for interim relief was granted on October 27, 2008.

Petitioner contends that M.D. is a homeless child within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, is entitled to attend respondent’s schools.  Respondent disputes that M.D. is homeless within the meaning of McKinney-Vento and contends that petitioner has not established that M.D. is a district resident.

I find no merit to petitioner’s contention that M.D. is a homeless child.  Education Law §3209(1)(a) defines a homeless child as:

1. a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:

i.   sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

  1. living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
  2. abandoned in hospitals;

iv.  awaiting foster care placement; or

v.   a migratory child ... who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or

2. a child or youth who has a primary nighttime location that is:

i.   a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or

ii.  a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings ....

Both Education Law §3209 and §100.2(x) of the Commissioner’s regulations conform to the definition of “homeless children and youths” in McKinney-Vento.

M.D. does not fit the definition of a homeless child under either State or federal law.  Petitioner asserts that, “for economic reasons,” M.D. lives in the house owned by her and her husband.  To support her claim that M.D. is homeless, petitioner explains that M.D.’s parents “are experiencing economic hardship and they believe that [M.D.] will be better off living with his grandparents.”  However, there is no evidence in the record that M.D. lacks a fixed, regular nighttime residence, that M.D.’s current living arrangement is inadequate, or that M.D.’s living arrangement is the type of temporary shelter or other accommodation described in Education Law §3209.  Indeed, petitioner claims that M.D. intends to reside in her home “until 2011 when he graduates from school.”  Moreover, other than petitioner’s conclusory allegations that M.D.’s parents are experiencing “economic hardship” and that M.D. “will be better off” living with her, there is no evidence that M.D. was forced to leave his parents’ home in Florida and that he could not return to it if he so chooses.  Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of district for homeless children are not applicable in M.D.’s circumstances.

Respondent asserts that petitioner has failed to demonstrate that M.D. is a resident of the district.  A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).  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 Goldman, 46 Ed Dept Rep 224, Decision No. 15,488; Appeal of Palmieri, 45 id. 174, Decision No. 15,293).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (see Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Jeudy, 46 Ed Dept Rep 512, Decision No. 15,579).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (see Appeal of Moyer, 46 Ed Dept Rep 290, Decision No. 15,511; Appeal of Santana, 46 id. 255, Decision No. 15,499; Appeal of Werner, 45 id. 14, Decision No. 15,244).

Moreover, where the sole reason the child is residing with someone other than a parent is to take advantage of the schools of the district, the child has not established residence  (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeal of Proctor, 46 id. 575, Decision No. 15,599).  However, a student may establish residence apart from his or her parents for other bona fide reasons, such as family conflict (Appeal of Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293) or the hardships of single parenting (Appeal of Langer, 33 Ed Dept Rep 139, Decision No. 13,003).  In such cases, the mere fact that a child continues to maintain a relationship with parents who have otherwise relinquished custody and control of the child is not determinative in resolving the question of the child’s residence (Appeal of Palmieri, 45 Ed Dept Rep 174, Decision No. 15,293).

The parties do not dispute that M.D.’s parents currently live in Florida.  Although the record indicates that M.D.’s parents continue to own property within the district, 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 Hensley, 46 Ed Dept Rep 187, Decision No. 15,480; Appeal of Cross, 44 id. 58, Decision No. 15,098; Appeal of O’Herron, 41 id. 1, Decision No. 14,591).

Petitioner claims that she and her husband support M.D. and that his parents have effected a total and permanent transfer of custody.  As evidence, petitioner submits a custodial affidavit, dated September 12, 2008, in which she states that she provides “any and all necessities” for M.D., who intends to reside with her “until 2011 when he graduates from school.”  The record also contains a parental affidavit from M.D.’s mother, dated September 12, 2008, affirming that petitioner has “custody and control” of M.D.  Respondent submits no evidence to the contrary.

Petitioner has also submitted evidence that M.D. is living with her for reasons other than to take advantage of respondent’s schools.  The parental affidavit from M.D.’s mother states that M.D. is living with his grandparents because he “is very close to his grandfather, my dad, who is very ill and he helps Mom and Dad.”  Petitioner’s custodial affidavit states that M.D. is living with her “not only because he wants to attend school in the area where he grew up, but also because his grandfather who is 70 years old, has cancer and [M.D.] is a big help to me and his grandfather.”  While an earlier custodial affidavit indicates M.D.’s desire “to attend school where he grew up” rather than in Florida, this desire does not appear to be the sole reason for M.D.’s presence in the district.  On the record before me, I find that petitioner has provided sufficient evidence of bona fide reasons why M.D. resides apart from his parents.

Based on the record before me, I conclude that M.D.’s residence is with petitioner.  The record indicates that M.D.’s mother has transferred custody and control to petitioner, who provides for M.D.’s needs.  I further find that the arrangement is not temporary, nor was it entered into solely for the purpose of taking advantage of respondent’s schools.  Under these circumstances, I find that petitioner has rebutted the presumption that M.D. resides with his parents in Florida and has established M.D.’s intent to remain in the district.  Accordingly, I cannot uphold respondent’s determination.


IT IS ORDERED that respondent allow M.D. to attend school in the Lewiston-Porter Central School District without the payment of tuition.



[1] Together with its affidavit in opposition to petitioner’s request for interim relief, respondent submitted a September 4, 2008 custodial affidavit from M.D.’s mother stating that M.D. would live with his grandparents “until 2011 when he is done with school and graduates” because “he wants to attend school where he grew up.”  M.D.’s mother also stated that she does “not want [M.D.] to quit school and he doesn’t like the school that he would have to go to in [Florida].  There are a lot of drugs [and] bad kids that go there.”