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Decision No. 18,338

Appeal of SAVAY SVAY-OTERO, on behalf of her child, from action of the Board of Education of the East Irondequoit Central School District regarding residency.

Decision No. 18,338

(August 23, 2023)

Ferrara Fiorenza PC, attorneys for respondent, Mallory A. Roberts and Joseph G. Shields, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the East Irondequoit Central School District (“respondent”) that her child (the “student”) is not a district resident.  The appeal must be sustained.

Petitioner and the student’s father share custody of the student.  Petitioner resides within the district (the “in-district address”) while the student’s father resides outside the district (the “out-of-district address”).  

The student attended respondent’s district as a resident for several years prior to the events giving rise to this appeal.  At a committee on special education (CSE) meeting on February 10, 2023, petitioner told school employees that the student had recently been living with his father “as a result of [his] toxic relationship with his girlfriend ....”  In a letter dated February 22, 2023, respondent requested that petitioner submit additional information concerning the student’s residency.  Petitioner responded by email, indicating that the student was residing with his father “temporarily[,] not permanently.”  Several staff members thereafter attempted to contact petitioner for “clarification” as to her statement.  Petitioner did not respond directly but sent a note from the student’s physician identifying his address as the in-district address.  

In a letter dated March 20, 2023, respondent excluded the student as a non-resident.[1]  This appeal ensued.  Petitioner’s request for interim relief was granted on May 1, 2023.

Petitioner asserts that the student resides at the in-district address.  She indicates that the student had a “mental health crisis” during the 2022-23 school year, was admitted to a hospital, and “went to visit his father” thereafter.  She additionally asserts that, generally, the student spends weekends with his father and other days “at [her] discretion.”  She seeks a determination that the student is a district resident entitled to attend its schools tuition-free.

Respondent argues that its determination is supported by the evidence in the record, including petitioner’s admissions against her interest.

First, I must address a procedural matter.  A memorandum of law should consist of arguments of law (8 NYCRR 276.4).  It may not be used to add belated assertions or exhibits not included in the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  As such, I have not considered the new factual assertions contained in respondent’s memorandum of law.

Turning to the merits, Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

Once established, residency is retained until a new permanent residence is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Temporary absence from a school district does not necessarily relinquish residency (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Where a petitioner asserts than an out-of-district living arrangement is merely temporary, the Commissioner will consider evidence regarding the petitioner’s continuing ties to the community and efforts to return to the district (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

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 (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has submitted sufficient evidence that the student’s presence at the out-of-district address is temporary and did not result in an abandonment of his residence.  She submits a letter from a care manager at Rochester Regional Health and a letter from the student’s therapist at Rochester General Health.  The care manager indicates that the student temporarily resided at the out-of-district address following a “mental health crisis” and an out-of-school suspension, while the therapist indicates that petitioner “continues to have primary residency and custody” of the student while he is “temporarily visiting” his father. 

These assertions are largely consistent with respondent’s evidence.  For example, respondent admits in its answer that the student served an out-of-school suspension in early 2023.  Respondent also admits that petitioner characterized the student’s presence at the out-of-district address was “temporary.”  As indicated above, a temporary absence does not necessarily result in abandonment of a residence (see Appeal of M.M., 61 Ed Dept Rep, Decision No. 18,018; Appeal of K.S., 57 id., Decision No. 17,229).

Respondent poses two additional arguments on appeal.  First, it argues that petitioner only asserted that the student was “temporar[i]ly” outside of the district in response to its February 22, 2023 letter.  I do not find this persuasive as respondent only learned of the student’s living circumstances based on information petitioner volunteered at a CSE meeting.  There is no evidence that petitioner intended this comment as a definitive statement of the student’s residency.  Second, respondent contends that conflict with the student’s girlfriend precipitated his move outside of the district, which will presumably continue if the student remains at the in-district address.  However, it appears that the student is no longer dating the girlfriend: an entry in the student’s counseling contact log from February 16, 2023 indicates that the student’s father “made [the student] break up with his girlfriend as the relationship was not healthy.”

I acknowledge that the circumstances of the student’s living arrangements are not entirely clear.  For example, the record contains a social/developmental history form completed by petitioner on March 19, 2023 in which she indicates that the student was “currently staying with his dad until he can meet mom’s rules.”  This assertion is not explained further in the record.[2]  Nevertheless, I cannot find that, as of March 20, 2023, the student abandoned the in-district address and established a new residence. 


IT IS ORDERED that respondent admit the student to the schools of the district without the payment of tuition.



[1] This letter also indicated that the student “ha[d] not been attending school” since February 16, 2023 and had been marked absent.


[2] It is unclear whether the district possessed or relied upon this form in making its March 20, 2023 determination of non-residency.