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Decision No. 13,818

Appeal of VICTOR CORTES, on behalf of VICTOR CORTES JR., WILSON CORTES and JASON CORTES from action of the Board of Education of the Menands Union Free School District regarding residency.

Decision No. 13,818

(August 18, 1997)

Statewide Youth Advocacy, Inc., attorneys for petitioner, Karen Norlander and Jennifer A. Brown, Esqs., of counsel

Ronald H. Sinzheimer, Esq., P.C., attorneys for respondent, Peter

J. Molinaro, Esq., of counsel

Petitioner appeals respondent's determination that his sons, Victor Jr., Wilson and Jason, are not residents of the Menands Union Free School District ("district"). The appeal must be sustained.

Petitioner resides at 15 Amsterdam Avenue, Menands, within the district. Pursuant to an order issued February 1, 1995, by the Albany County Family Court, petitioner shares joint legal custody of his three sons with his former wife (the boys' mother) who lives in the city of Albany, a neighboring school district. Petitioner asserts that he moved to the Menands address on or about June 15, 1996, so that the children, who are teenagers, could walk between their parents' homes, enabling them to visit either parent on days when the other has physical custody.

On October 17, 1996, Michael Lancor, the superintendent and the district's designee for determining residency, sent a letter to petitioner notifying him that his sons were not entitled to attend the schools of the district. The letter stated in pertinent part:

As the official designee for the Menands Union Free School District, I have determined that your children Victor, Jr., Wilson and Jason Cortez [sic] are not entitled to attend the public schools of this district which includes Shaker High School. The basis for my determination is independent evidence that I have received based upon personal observation over an extended period of time that your children reside at a location outside the boundaries of the Menands Union Free School District. The evidence before me directly contradicts residency information that you supplied to this district. Pursuant to the New York State Education Law, non-resident students are not entitled to attend the public schools of the district. Your children are entitled to attend the public schools of the district in which they actually reside.

The letter informed petitioner that his sons would not be excluded from school until October 25, 1996, which would give them time to enroll in the Albany schools. Mr. Lancor also informed petitioner of his right to appeal this determination to the Commissioner of Education. The letter concluded: "[t]he district reserves the right and is reviewing the option of pursuing criminal and/or civil legal processes against you based upon the expenditure of public funds as a result of your representing the children as residents of the Menands Union Free School District."

Mr. Lancor's determination was based on the district's residency investigation, commenced at the beginning of the 1996-1997 school year. Since the district has no high school, it contracts with three school districts for the use of their high schools by children residing in the district. According to Mr. Lancor, the parent or guardian is supposed to come to the district offices prior to the start of school each September to register the child to attend the schools of the district. At that time, residency information is requested and a determination is made. Respondent asserts that this procedure was not followed by either petitioner or his former wife, and that no registration was ever made for the three Cortes children prior to the start of school in September 1996.

Mr. Lancor also states that as part of the general residency investigation process, he met with the bus driver responsible for transporting Menands students to Shaker High School (one of the three contracted schools), who gave him a list of students who rode the bus to Shaker High. Mr. Lancor then attempted to verify that all the riders were residents of the district. Mr. Lancor asserts that there were no district records for the Cortes brothers, although the bus driver informed him that he picked up the students at the corner of North Pearl Street and Wolfert Avenue and transported them to Shaker High. Mr. Lancor contacted Shaker High School officials, who confirmed that the boys were attending the school and had given 15 Amsterdam Avenue in Menands as their residence.

Mr. Lancor then contacted petitioner, who completed a residency affidavit on September 25, 1996, and submitted a copy of the February 1, 1995 custody order. Mr. Lancor determined that under that custody order, the brothers spend five days a week with their mother in Albany and two with their father for a two week period. For the second two week period, they spend four days with their mother and three with their father. Mr. Lancor asserts that consequently, the boys spend nearly seventy percent of their time living in the city of Albany and not in the Menands school district. Accordingly, he asked a private investigator to review the matter. Mr. Lancor also contacted petitioner's landlord, who informed him that petitioner rents only a one bedroom apartment. The landlord also stated that he did not consider the apartment large enough for four people to reside there, and that petitioner informed him that only he would be residing there.

The private investigator informed Mr. Lancor that his initial surveillance revealed that the boys appeared to move between both parents' homes in accordance with the custody order. However, he did not observe petitioner picking up the boys from their mother's house and bringing them to school. Upon further investigation, the investigator spoke to officials at the Albany Housing Authority who informed him that the boys' mother listed all three boys (as well as two other children) as residents of her home in the city of Albany on both her 1995 and 1996 public assistance applications.

As a result of this investigation, Mr. Lancor sent the October 17, 1996 letter. On October 20, 1996, petitioner met with the district to discuss his children's residency. Mr. Lancor informed petitioner that the children had been seen heading in a direction away from petitioner's residence at the end of the school day. Petitioner presented the February 1, 1995 custody order to explain this situation. Mr. Lancor again advised petitioner he could appeal to the Commissioner. On October 21, apparently at the district's request, petitioner indicated in writing his intent to seek counsel and appeal the determination. He also requested a stay permitting his sons to continue to attend classes until the matter was resolved. The district agreed to do so on October 24, 1996. On November 14, 1996, with the assistance of counsel, petitioner again presented information to respondent regarding his joint legal custody of the children and affidavits from himself and the boys' mother indicating that they had designated petitioner's address in Menands as the boys' residence. Respondent rejected that submission and this appeal ensued.

Petitioner and his former wife assert that they have designated petitioner's home as the boys' residence and therefore the boys are residents of the district and entitled to attend the district's schools tuition-free. Petitioner asserts that he registered the boys on August 13, filled out an affidavit of residency and received a bus schedule. Petitioner also contends that respondent's notice of determination did not comply with the requirements of 8 NYCRR '100.2(y) because it did not provide a factual basis against which petitioner could provide sufficient evidence of residency.

I will first review the process employed by respondent. Section 100.2(y) of 8 NYCRR provides, in pertinent part:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district. When the board of education or its designee determines that a child is not entitled to attend the schools of such district because such child is neither a resident of such district nor entitled to attend its schools . . . , such board or its designee shall, within two business days, provide written notice of its determination to the child's parent, to the person in parental relation to the child, or to the child, as appropriate (emphasis added).

Section 100.2(y) further provides that the written notice must state, among other things, ". . . the basis for the determination that the child is neither a resident of the district nor entitled to attend its schools . . ." (8 NYCRR '100.2[y][2]) and that the determination of the board may be appealed to the Commissioner of Education (8 NYCRR '100.2[y][4]).

Respondent did not give petitioner notice of his right to submit information concerning his sons' right to attend school in the district prior to the final residency determination contained in the October 17, 1996 letter. While Mr. Lancor met with petitioner on October 20, this meeting was after the determination had been made, not before, as required by the regulation. The record indicates that the determination letter was the first communication from the superintendent to petitioner regarding residency.

Moreover, the October 17 determination letter failed to state an adequate basis for the determination that the boys were not district residents; "independent evidence . . . based upon personal observation over an extended period of time . . . " is hardly specific information from which petitioner could determine the basis of the determination. Accordingly, I admonish the district to comply henceforth with the procedures established in 8 NYCRR '100.2(y).

With respect to the merits of respondent's determination, respondent asserts that the children do not spend equal time between parental households and thus the parents do not have the right to designate a district of residency. It asserts further that the students actually reside in the city of Albany with their mother because the February 1, 1995 custody order provides that they reside with their mother nearly seventy percent of the time, petitioner lives in a one-bedroom apartment which is not large enough to support residency for three teenage boys, petitioner told his landlord only he would reside in the apartment, and the mother's public assistance applications list the boys as residing with her in Albany. Respondent also contends that petitioner's reliability is questionable because he submitted with the petition an earlier custody order dated October 4, 1994, which ostensibly distributed custodial time more equitably than the February 1, 1995 order.

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 Keenan, 36 Ed Dept Rep 6; Appeal of Brutcher, 33 id. 56).

It is well settled that a child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Keenan, supra; Appeal of Helms, 36 Ed Dept Rep 95; Appeal of Gwendolyn B., 32 id. 151; Appeal of Pinto, 30 id. 374). Where a child's parents live apart, the child can have only one legal residence (Appeal of Helms, supra; Appeal of Juracka, 31 Ed Dept Rep 282). Where the child's parents are divorced and a court order awards custody of the child to one parent, the child's residence is presumed to be that of the custodial parent (Appeal of Forde, 29 Ed Dept Rep 359; Appeal of Juracka, supra). However, that presumption may be rebutted.

Respondent argues, based on Appeal of Forde, supra, that prior Commissioner's decisions "have allowed divorced parents to designate their children's district of residency only in cases where the children spend equal time between the parental households and the parents both assume day to day responsibility for the children." Respondent argues that "the equality of time and responsibility required to allow parents to independently designate a district is not present in the Cortes case as the boys clearly reside with their mother in Albany."

Respondent's argument is flawed in two respects. First, they misread Forde to stand for the proposition that divorced parents may designate the child's residency only in cases where the children divide their time equally. Second, they miscalculate the time the boys live with their father, contending it is insignificant. In Forde, Commissioner Sobol held:

In those cases where the child's time is essentially divided between two separate households and the parents both assume day to day responsibility for the child, the determination of the child's residence must rest ultimately with the family. In such cases, the custodial parent may designate the child's residence for purposes of Education Law '3202 (emphasis added).

Thus, Forde allows parents to designate a child's residence where a child's time is "essentially divided" between two residences and both parents assume responsibility for the child. Nothing in Forde requires that the child's time be divided exactlyequally between the parents. Furthermore, in Forde, where only one parent had legal custody, the custodial parent had the prerogative to designate the child's residence for educational purposes. In the instant case, where the court order awarded joint legal custody to both petitioner and his wife, it must also be the parents' prerogative to designate the child's residence for education purposes. (SeealsoAppeal of Kind, 32 Ed Dept Rep 584; Appeal of Juracka, supra). Affidavits from both petitioner and his former wife demonstrate that they have designated respondent's district as the boys' residence.

Furthermore, a close examination of the controlling court order indicates that the boys' time is essentially divided between both households and that respondent erred in its calculation of the amount of time the boys are to be with their mother. In the petition, petitioner submitted a court order, dated October 4, 1994, under which the boys are returned to their mother Sundays at 9:00 a.m. Under the later order, dated February 1, 1995, they are returned Saturday nights at 8:00 p.m. This shortens petitioner's weekly custody by half a day. Respondent argues that the earlier order supports petitioner's residency argument and petitioner is deceptively trying to argue his appeal under that earlier order, instead of under the 1995 order which was submitted to the district in September 1995 and upon which the district based its determination. Petitioner also referenced the 1994 order in his November 14, 1996 letter to the district, and the affidavits attached to that letter reference the Sunday custody transfer. However, the custody arrangement petitioner describes in the letter itself actually comports with the later February 1, 1995 order. He states in the letter that the boys live with him "every week from Thursday to Saturday and, on alternating weeks, Wednesday as well." Petitioner admits in his reply that he unintentionally submitted the 1994 court order with the petition, and freely admits that the later order, dated February 1, 1995, controls. I accept petitioner's explanation, especially since the 1995 order is less advantageous to him, and base this determination on the 1995 order, which provides in pertinent part:

ORDERED, that the [mother] shall have custodial access to the children at the following times:

A. On alternating weeks commencing February 4, 1995 from Saturday at 8:00 p.m. until Wednesday at 8:00 a.m. at which time Petitioner shall pick the children up and transport them to school; and

B. On alternating weeks commencing February 11, 1995 from Saturday at 8:00 p.m. until Thursday at 8:00 a.m. at which time Petitioner shall pick the children up and transport them to school; and

Such other and further time as the parties can mutually agree. . . .

Thus, the first week, the boys are to be with their mother Saturday night to Sunday night (1 day), Sunday night to Monday night (1 day), Monday night to Tuesday night (1 day), and Tuesday night to Wednesday morning (1/2 day), for a total of 3 1/2 days. The second week, an additional day from Tuesday night to Wednesday night (1 day) is added, with the 1/2 day being from Wednesday night to Thursday morning, for a total of 4 1/2 days. Thus, during the school week, the children's time is essentially equally divided between petitioner and his former wife, each parent having the children for two school days one week and three school days the next. Respondent's conclusion that under this arrangement "the boys spend upwards of seventy percent of their time living in Albany" is thus contrary to the evidence. In the margins of the copy of the custody order attached as Exhibit 1 to respondent's Answer, next to paragraph A above, is written "4 days," and next to paragraph B is written "5 days;" it appears that respondent miscalculated the custodial arrangement outlined in the custody order.

On these facts, I find the children's residence to be within the district. The mere fact that petitioner lives in a one bedroom apartment does not perse support the district's determination that the boys do not reside with their father pursuant to the court order (seeAppeal of Quinones, 36 Ed Dept Rep 89). Nor is unsubstantiated evidence regarding public assistance applications or policies relevant.

While it is not critical to this determination, the vagueness about what prompted the district's investigation and its procedures is unsettling. Mr. Lancor's affidavit states that "as part of the residency investigation process, I met with the bus driver responsible for transporting Menands students to Shaker High School." Mr. Lancor then checked the residency of those on the list. It is unclear how a bus driver would know where and whether to pick up students and to which of the three contracted schools to transport them, without having been directed to do so by the district in the first place. How would the district know to tell the bus driver if there were no registration on hand? Also, Mr. Lancor states that the "proper procedures" require parents to register each student at the district offices each September. Although respondent asserts that no one registered the boys, petitioner claims he did register his sons in August and presents a copy of an affidavit of residency dated August 13, 1996. He also presents a copy of an August 14, 1996 letter on district letterhead, though unsigned, stating that "Mr. Cortes has contacted the Menands School and has presented affidavit [sic] of residence for his children to attend high school." The district neither addresses this evidence nor presents documentation of the district’s procedures.

Accordingly, since the parents have designated the district as the boys' residence for purposes of '3202, and the record facts reflect the application of that designation, the district's determination must be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the Menands Union Free School District admit petitioner's sons to the schools of the district without the payment of tuition.

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