Appeal of J.G., on behalf of his child, from action of the Board of Education of the City School District of the City of Peekskill regarding residency and homelessness.

Decision No. 18,589

(July 15, 2025)

Ingerman Smith, L.L.P., attorneys for respondent, Gabrielle P. Heffernan, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the City School District of the City of Peekskill (“respondent”) that his child (the “student”) is not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC § 11431 et seq., “McKinney-Vento”) and, therefore, is not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

In September 2023, respondent learned that the student resided with petitioner at a location outside of its district (the “out-of-district address”).  Petitioner asserted that he and the student’s mother were engaged in a custody dispute and that, consequently, the student was homeless. 

By letter dated November 28, 2023, respondent determined that the student was not homeless.  This appeal ensued. 

Petitioner contends that the student is homeless because he refuses to return to live with his mother within respondent’s district.  He seeks a determination that the student is homeless.

Respondent argues that the student is not homeless because he has two fixed, regular, and adequate residences.  Respondent further argues that the custody dispute between petitioner and his spouse alone does not render the student homeless.

Pursuant to Education Law § 3209 (1) (a), a “homeless child” is:  (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “a supervised publicly or privately operated shelter designed to provide temporary living accommodations” or “a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.”^[1]  Both Education Law § 3209 and section 100.2 (x) of the Commissioner’s regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a [2]). 

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

Petitioner has not met his burden of proving that the student is homeless.  Petitioner appears to allege that the student is staying with him temporarily due to an ongoing custody dispute.  However, he does not allege that the out-of-district address is inadequate, stating merely that the student has his own room.  Accordingly, petitioner has not proven that the out-of-district address is inadequate (Appeal of S.R., 64 Ed Dept Rep, Decision No. 18,479; Appeal of a Student with a Disability, 58 id., Decision No. 17,484).  Similarly, there is no indication that the student needs to vacate the out-of-district address or that there is a fixed time as to how long he may remain (see Appeal of D.S., 60 Ed Dept Rep, Decision No. 17,864, Appeal of S.R., 56 id., Decision No. 16,987; Appeal of A.N.Z., 53 id., Decision No. 16,537).[2]

THE APPEAL IS DISMISSED.

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