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Decision No. 16,086

Appeal of KIA ATKINSON, on behalf of her daughter ZANIA COLEMAN, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,086

(July 2, 2010)

Ingerman Smith, LLP, attorneys for respondent, Noah Walker, Esq., of counsel

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

Petitioner claims to reside within respondent’s district with her mother, sister and Zania at a residence owned by her mother.  Zania’s father maintains a separate residence outside the district.  Petitioner asserts that Zania resides at the in-district residence Sunday through Tuesday and on Thursday, and that Zania spends Wednesday, Friday and Saturday nights at her father’s out-of-district residence. 

On January 5, 2010, the district notified petitioner that Zania was not eligible to attend respondent’s schools.  On January 7, 2010, the district conducted a residency hearing and determined that petitioner’s daughter was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 26, 2010. 

Petitioner argues that she and Zania reside at her mother’s in-district residence and that they occasionally stay overnight at Zania’s father’s residence, which is located outside respondent’s district.   

Respondent contends that petitioner has failed to demonstrate that Zania is a district resident, as she primarily resides with her mother and her father outside of 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 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).

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).

In support of her petition, petitioner provides various documents stating that her residence is at the in-district property and an Order of Support which indicates that Zania’s father is the non-custodial parent. 

Respondent based its residency determination on a report of surveillance conducted on twelve dates over a two and a half month period from November 9, 2009 through January 7, 2010.  The in-district residence was observed on three mornings, each of which was a Tuesday and Thursday, when Zania was expected to be at the in-district residence.  Neither petitioner nor Zania were seen on these three occasions and petitioner’s car was not parked at the property.  On seven of the nine mornings that the out-of-district property was observed, petitioner was seen leaving the residence.  On three mornings, a Friday and two Thursday’s, Zania was observed at the out-of-district residence, and on one occasion, petitioner was observed leaving the out-of-district residence without Zania and driving to the in-district residence to pick her up. 

The evidence offered by petitioner does not explain the discrepancy between petitioner’s contentions that she resides within the district and the surveillance report submitted by respondent indicating that her actual residence is outside of the district.  Petitioner alleges that she was a student attending evening classes at Nassau Community College from September to December 2009 and Zania spent several nights at the out-of-district residence.  Petitioner offers no explanation of her own presence at the out-of-district residence on these multiple occasions, nor does she explain the observation of Zania at the out-of-district residence on a Thursday in January.  Petitioner provides a Court Order stating that she is the custodial parent. Therefore, Zania’s residence is presumed to be that of petitioner.  Based on the record before me, I cannot conclude that respondent’s determination that Zania is not a district resident is arbitrary or capricious.   

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Zania’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.