Appeal of BOBBIE JO ECKSTEIN, on behalf of her daughter ALLYSIN, from action of the Board of Education of the Norwood-Norfolk Central School District regarding residency.

Decision No. 17,680

(July 3, 2019)

Silver & Collins, attorneys for respondent, Andrew W. Silver, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Norwood-Norfolk Central School District (“respondent”) that her daughter (the “student”) is not a district resident.  The appeal must be dismissed.

Prior to the events described in this appeal, the student attended school in a neighboring school district.  The record further reflects that, at all times relevant to this appeal, petitioner was an employee of respondent’s district.

Petitioner asserts that, in March 2019, she removed the student from the neighboring school district because the student was subjected to bullying and harassment in that district.  Thereafter, petitioner enrolled the student in respondent’s district.  In the course of registration, petitioner submitted a parent affidavit in which she indicated that she had transferred custody of the student to the student’s older sibling.  According to the record, the older sibling resides within respondent’s district.[1]  Respondent admitted the student as a district resident “but later changed that determination,” according to respondent, “when it became apparent ... that [the student] was not a proper School District resident.”

In a letter dated April 12, 2019, the superintendent informed petitioner of his determination that the student did not reside within respondent’s district.  The superintendent based his determination upon a finding that petitioner did not, in fact, surrender complete custody and control over the student to her older sister because petitioner: (1) drove the student to and from school; (2) attempted to sign the student out of school; (3) paid for the student’s “ticket to a fundraising event”; and (4) indicated that she could not work a half day in respondent’s district because she would “have to come back to school to pick [the student] up.”  Based upon this information, the superintendent determined that the parent affidavit was “void” and that the student’s legal residence remained with petitioner.  Petitioner appealed this determination to respondent.

In a letter dated April 23, 2019, the superintendent informed petitioner that respondent upheld his determination at a meeting held on April 22, 2019.  The superintendent further indicated that petitioner and the student’s older sibling’s boyfriend had attended the April 22, 2019 meeting.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 17, 2019.

Petitioner contends that she has transferred custody and control of the student to the student’s older sister, who resides within respondent’s district.  Petitioner requests a finding that the student is a district resident entitled to attend school in respondent’s district without payment of tuition.

Respondent argues that its determination was rational and supported by the evidence before it.[2]

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Here, petitioner has failed to rebut the presumption that the student resides with petitioner, her mother, outside of respondent’s district.  As indicated above, the superintendent based his determination on the grounds that petitioner: (1) drove the student to and from school; (2) attempted to sign the student out of school; (3) paid for the student’s “ticket to a fundraising event”; and (4) indicated that she could not work a half day in respondent’s district because she would “have to come back to school to pick [the student] up.”

Additionally, in its April 23, 2019 determination, respondent based its determination on appeal on the ground that:

[The student] has continued to rely on [petitioner] in a parental capacity as stated [in its] letter to [petitioner] on April 12, 2019, and, as stated by [the student’s older sister’s boyfriend] at the meeting, [petitioner] ha[s] paid him for [the student’s] living costs ... [Petitioner] continue[s] to be involved with [the student] in the role as a parent and ha[s] taken responsibility for her care.

On appeal, petitioner offers explanations for each of respondent’s grounds for denying the student admission into the district.  With respect to petitioner’s driving the student to and from school, petitioner indicates that, on one occasion, the student’s older sister called petitioner and asked her to transport the student to school “because she did not make it home in time from work to get the kids off to school and they had missed the buss” [sic].  Petitioner further asserts that, on another occasion, petitioner picked up the student “on [her] way to work ... so I could see her and spend some time with her before school.”  With respect to the ticket for a school event, petitioner denies respondent’s allegations and asserts that the student paid for the ticket with her own money.  Petitioner admits that she indicated to a secretary that she could not work a half day because she “would have to drive home then drive all the way back to Norwood to pick” the student up to “baby sit.”  Petitioner also admits that she “asked if [she] was allowed to sign out [the student] on that half day” or whether the student’s older sister “ha[d] to put [her] on this list to do so.”

On this record, I find that petitioner has failed to meet her burden of proving that she effectuated a complete transfer of custody and control of the student to the student’s older sister.  Significantly, petitioner has not responded to, or refuted, respondent’s finding that petitioner continues to pay the student’s housing costs, despite her allegedly complete transfer of custody and control to the student’s older sister.  Additionally, while petitioner has presented a plausible explanation for some of the reasons upon which respondent based its determination, she has submitted no proof in support of these assertions.  As stated above, 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  Therefore, on this record, I find that petitioner has failed to meet her burden of proving that she effectuated a complete transfer of custody and control of the student to the student’s older sister (see Appeals of T.M., 58 Ed Dept Dep, Decision No. 17,496; Appeal of Marbury, 41 id. 119, Decision No. 14,634; Appeal of S.V., 38 id. 478, Decision No. 14,075).

The only evidence submitted by petitioner on appeal is an unsworn letter from the landlord of petitioner’s residence (which is located outside of respondent’s district) stating that the student does not live at petitioner’s address and an unsworn letter from the student’s older sister, who asserts that the student lives with her within the district.  While these letters are entitled to some weight concerning the student’s physical presence, that is not at issue in this appeal.[3]  The parties’ dispute concerns the issue of whether petitioner has effectuated a complete transfer of custody and control over the student to the student’s older sister and, based on the record before me, petitioner has not met her burden of demonstrating a complete transfer of custody and control of the student.

In light of this determination, I need not address the parties’ remaining contentions.

Although the appeal must be dismissed for the reasons described above, I note that petitioner retains the right to reapply for admission to respondent’s schools on her daughter’s behalf at any time, should circumstances change, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE