Appeal of M.B. and S.B., on behalf of their child, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 18,612

(July 29, 2025)

Tully Rinckey PLLC, attorneys for petitioners, Nicholas A. Marricco and Sivan Zak, Esqs., of counsel

Bernadette Gallagher-Gaffney, Esq, attorney for respondent

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her child (the “student”) is not a district resident.  The appeal must be dismissed.

The student was first enrolled in respondent’s district in 2020.  At that time, petitioner S.B. indicated that the student resided with her at the student’s grandparent’s home (the “in-district address”).  Respondent investigated the student’s residency during the 2023-2024 school year.  This culminated in a residency hearing on November 9, 2023,[1] wherein respondent presented evidence that petitioners, the student, and one of her siblings were observed leaving a home outside of the district (the “out-of-district address”) and bringing the student to school.  On January 17, 2024, a hearing officer found that the student resided outside of the district and would be excluded as of January 26, 2024.  Petitioners did not appeal this determination.  The student attended the district serving the out-of-district address for the remainder of the 2023-2024 school year.

In August 2024, the student’s grandmother reapplied for the student’s admission, asserting that petitioner S.B. transferred custody of the student to her.  As proof, the grandmother submitted a sworn, notarized form applicable for 12 months.  Respondent conducted a second hearing on November 1, 2024.  In a decision dated December 2, 2024, a hearing officer determined that the student did not reside within the district and would be excluded as of January 6, 2025.  This appeal ensued.  Petitioners’ request for interim relief was granted on January 27, 2025.

Petitioners assert that the student resides at the in-district address with her grandmother, to whom petitioner S.B. transferred custody.  Petitioners seek a finding that the student is a district resident.

Respondent argues that the appeal must be dismissed on procedural grounds.  On the merits, respondent contends that its determination is supported by the evidence in the record. 

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 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).

The presumption that a child resides with his or her parent or legal guardian can be rebutted upon a determination that the parent or guardian has executed a total, and presumably permanent, transfer of custody and control of the child to a third party (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  Although a formal transfer of custody and control through a guardianship or Family Court proceeding is not required to establish a child’s residency for purposes of Education Law § 3202, the evidence must demonstrate that the child’s permanent residence is within the district and that the individual exercising custody and control of the child has full authority and responsibility with respect to the child’s support and care (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 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).

First, I must address the scope of my review.  Petitioners did not appeal respondent’s January 2024 determination, which concluded that the student resided outside of the district.  As such, that decision has become final and binding (Appeal of K.L., 59 Ed Dept Rep, Decision No. 17,730; Appeal of T.M., 57 id., Decision No. 17,165; Appeal of Laventure-Louis and Louis, 56 id., Decision No. 17,027).  Since petitioners do not allege a change in circumstances, they are precluded from arguing in this appeal that the student resides with petitioner S.B. at the in-district address.

Turning to the merits, petitioners have failed to establish a clear legal right to their requested relief.  The time-limited and conditional nature of the custody form, which was executed only by petitioner S.B.,[2] prevents it from being considered a total transfer of custody and control (Appeal of Jackson, 62 Ed Dept Rep, Decision No. 18,276; Appeal of Suprunchik, 61 id., Decision No. 18,074; Appeals of Ward, 60 id., Decision No. 17,944).  Moreover, as the hearing officer reasoned, petitioners “indicated that they would remain involved in … decision making” and would retain responsibility for a portion of the student’s living costs.  Thus, petitioner S.B. did not provide the grandmother with full authority and responsibility with respect to the child’s support and care (Appeal of N.L., 65 Ed Dept Rep, Decision No. 18,597; Appeal of D.M. and J.D., 61 id., Decision No. 18,031).

In light of this determination, I need not address respondent’s procedural defenses.  To the extent they are unaddressed herein, petitioners’ remaining contentions are without merit or do not warrant relief.

THE APPEAL IS DISMISSED.

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