Decision No. 13,667

(August 28, 1996)

Paul A. Boronow, Esq., attorney for petitioners

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Freeport Union Free School District ("respondent") that Mrs. Ravix' children are not residents of the district. The appeal must be sustained in part.

Petitioners are the mother and stepfather of Elizabeth and Stephanie. Prior to April 1995, petitioners and the students lived in Baldwin, New York and the children attended school in the Baldwin Union Free School District. In April 1995, petitioners moved to the home of petitioner Roger Ravix' cousin in Freeport, within respondent's district. At that time, petitioner Roger Ravix went to the offices of the Baldwin Union Free School District to notify the district of the move. Baldwin school officials informed him that the new address was located in the Freeport Union Free School District and that the children should attend the schools there. Petitioners received a letter from the Baldwin school district indicating that the children could continue in the Baldwin schools until the end of the semester, but that they would then be required to attend the Freeport schools.

In September 1995, petitioners went to respondent's offices to register the children for school. At that time they were required to supply an affidavit concerning residency, proof of the landlord's ownership of the property and proof of their receiving mail at that address. Petitioners complied with those requirements and the children began attending school in respondent's district. In November 1995, petitioner Roger Ravix was accepted to Yale University to pursue graduate studies. Petitioners made arrangements with the children's grandparents so that the children would be able to stay with the grandparents during the week since petitioner Rachele Ravix is a 24 hour duty nurse. The children's grandparents reside within the Uniondale Union Free School District.

In November 1995, petitioner Roger Ravix went to respondent's offices to inform them that he would be studying away from home and that the children would be staying with their grandparents during the week. A district representative inquired if their permanent residence was going to change. Petitioner indicated that the family would remain in Freeport. The district representative indicated that if the permanent residence was in Freeport, the children would remain in school. In November 1995, petitioner went to the Uniondale Union Free School District to confirm that the information received from respondent's office was correct. When he explained the family's living arrangements, a Uniondale district representative informed petitioner that the children should attend school in Freeport since they would not be legal residents of Uniondale.

In December 1995, petitioner Roger Ravix began his studies at Yale. During the week, the children resided with their grandparents, and on the weekends, petitioner Rachele Ravix allegedly lived with her children in Freeport. In Spring 1996, school officials in respondent's district commenced an investigation of petitioners' residency apparently based on the fact the school registration materials gave a home telephone number with a telephone exchange outside the Freeport area. By letter dated March 22, 1996, respondent's attendance officer informed petitioner that he had determined that the children did not reside in the district and that petitioners could contest this determination and request an administrative review within 10 days of the date of the letter. In a note dated April 1, 1996, petitioner Rachele Ravix contested this determination and requested an administrative hearing to be held on a Friday since that was her only day off.

By letter dated April 1, 1996, respondent's designee acknowledged petitioners' request for a hearing and scheduled one on Monday, April 15, 1996. On that date, petitioner Roger Ravix appeared at the hearing since his wife had to work and could not attend. Although respondent's designee inquired as to petitioner Ravix' status and was informed that he was a stepfather to the children, and not an adoptive parent or legal guardian, respondent's designee determined that she would proceed with the hearing indicating that the district could not accommodate parents' scheduling requests for hearings. At the hearing, Mr. Ravix explained the family's living arrangements: that he was attending graduate school at Yale, that his wife worked long hours and that the children stayed with their grandparents during the week. By letter dated May 6, 1996, respondent's interim superintendent of schools notified petitioners that he had determined that petitioners did not reside within the district but that, given the closeness to the end of the school year, the girls could remain in Freeport schools until June 1996. He further indicated that petitioners were liable for the payment of non-resident tuition for the time the children attended school when they were not residents of Freeport. This appeal ensued.

Petitioners allege that they reside in the district and that their current living arrangements are due to Mr. Ravix' graduate studies and Mrs. Ravix' work schedule. Petitioners allege that respondent's determination that they do not reside in the district is unfair, arbitrary and capricious. Petitioners also allege that respondent's violated petitioner Rachele Ravix' due process rights since she was not included in the residency determination. Petitioners request a determination that they live in respondent's district and that they owe no tuition to the school district since they are legal residents of the district. Finally, petitioners request attorneys fees and costs.

Respondent raises procedural defenses and contends that the petition does not contain a clear and concise statement of petitioners' claim and that the petition is insufficient since it contains only conclusory allegations that are improperly amplified by petitioners' unsworn memorandum of law. Respondent also contends that petitioners have not met their burden of establishing a clear legal right to the relief requested. Respondent contends that petitioners' claim that their due process rights were violated with regard to the administrative review is frivolous since Mr. Ravix requested the administrative hearing and Mrs. Ravix chose not to attend. Respondent further contends that the appeal is moot as it only relates to the children's education in the 1996-97 school year and thereafter the children may attend private school. Finally, respondent contends that its determination was not arbitrary, capricious or unreasonable and should not be set aside.

Before reaching the merits, I will address the procedural issues raised by respondent. Respondent claims that the petition does not contain a clear and concise statement of petitioners' claim, that the petition is insufficient and that the memorandum of law is unsworn and improperly amplifies the claims that should have been contained in the petition. Section 275.10 of the Commissioner's regulations provides that a petition:

In this case, I find that the petition is clear. Respondent excluded Elizabeth and Stephanie from school and petitioners argue that they are legal residents of the district. I note that respondent has adequately addressed petitioners' allegations in its answer (Appeal of Brazile and Bradford, 35 Ed Dept Rep 456; Appeal of Rackley, 35 id. 5; Appeal of Schechter, et al., 28 id. 118).

Although respondent objects to the format petitioners use, the petition in this matter specifically states that "the grounds upon which this appeal is taken, as set out more fully in the Memoranda of Law, annexed hereto and made a part hereof...". Therefore, the facts are incorporated into the petition by reference. In their reply, petitioners note respondent's objection to the pleadings and state that the verifications pertaining to the petition, memoranda of law and the exhibits were contained in one document and served on respondent at one time. Therefore, I do not find petitioners' pleadings defective and I will not dismiss the appeal on that basis.

Petitioners also object to the residency hearing conducted in the absence of Mrs. Ravix, mother of the children. Although respondent states that petitioners claims with regard to due process are "patently frivolous," I disagree. Section 100.2(y) of the Commissioner's regulations provides, in pertinent part:

The record in this case indicates that when petitioners received notice of the residency determination, Mrs. Ravix requested a hearing and the copy of the school district's letter indicates that Mrs. Ravix requested a hearing on a Friday since it was the only day she could attend. Respondent's Exhibit F, the audiotape of the hearing, contains a discussion of the fact that Mrs. Ravix wanted to attend the hearing but could not because it was scheduled on a Monday. The hearing officer specifically inquired as to Mr. Ravix relationship to the children and was informed that he was neither the legal guardian or adoptive stepparent of the children. As such, he was neither the parent or person in parental relation to the child, as required by '100.2(y).

Although respondent's answer indicates that Mr. Ravix asked the hearing officer to proceed, my review of the tape indicates that statement is a mischaracterization of what occurred. Mr. Ravix specifically noted that he was not the parent of the children and that Mrs. Ravix wished to attend the hearing but was unable to attend on that day due to her employment as a nurse. When this issue was raised, respondent's designee indicated that the district could not accommodate parental requests for scheduling. While I agree that respondent is not strictly obliged to accommodate parental requests for scheduling for the parents' convenience, the fact that respondent proceeded with the hearing in this matter without the presence of Mrs. Ravix was imprudent in view of the totality of the circumstances. I agree with petitioners that no fair review of Mrs. Ravix' residency was done. Therefore, I remand this matter back to the district for a determination of Mrs. Ravix' residence.

Education Law '3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523).

Even were the matter not remanded for the reasons set forth above, the record in this case is inconclusive with regard to Mrs. Ravix' residency, and I am unable to determine on this record in which school district she resides. However, I am constrained to comment on the discussions that took place during the hearing which I reviewed by listening to the audiotape of Respondent's Exhibit F. Mr. Ravix attempted to explain that his and Mrs. Ravix' living situation was complex for the period of December 1995 to December 1996 due to his graduate studies out of state. He explained that the children lived with their grandparents during the week due to his schedule and his wife's work schedule and that when he inquired at the Uniondale Union Free School District, he was told since the arrangements were only temporary, he could not enroll the children there. He explained that the children where seen at the address in the Uniondale district because their grandparents were caring for them and helping the family through this period. Therefore, when respondent undertakes further review of this matter, I urge respondent to carefully and thoroughly examine the indices Mrs. Ravix' residency and make a determination that takes into account the nontraditional living arrangements that parents frequently must make in modern life (see, Appeal of Brazile and Bradford, supra).

In light of the foregoing disposition, it is unnecessary to address the other claims raised by the parties.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent hold a hearing pursuant to 8 NYCRR 100.2(y) to determine whether petitioner Rachele Ravix is a resident whose children are entitled to attend the schools of the Freeport Union Free School District.

IT IS FURTHER ORDERED that respondent permit the students to remain in school until respondent issues its residency determination.

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