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Decision No. 14,849

Appeal of RAYMOND SEGER, on behalf of his children TYLER and ALEXA, from action of the Board of Education of the Hendrick Hudson Central School District regarding residency.

 

        (March 17, 2003)

 

Keane & Beane, P.C., attorneys for respondent, Michael D. Jones, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hendrick Hudson Central School District ("respondent") that his children, Tyler and Alexa, are not district residents.  The appeal must be sustained. 

In or about September 2000, Tyler and Alexa began attending school in respondent"s district.  In August 2002, the district received information that the children were residing outside the district with their mother, Beth Seger.  By letter dated August 7, 2002, respondent"s residency officer requested that Ms. Seger present proof of her residency within the district.  The residency officer avers that during a telephone conversation on August 21, 2002, Ms. Seger initially stated that she and petitioner were divorced, she had physical custody of the children and the children resided with her in Peekskill, outside the district.  According to the residency officer, Ms. Seger stated later in the conversation that she had joint custody of the children and on that basis, she had chosen to keep the children in the district"s schools.  Ms. Seger added that the children sometimes stayed with petitioner, who resides within the district.

By letter dated August 21, 2002, the residency officer informed Ms. Seger that as the parent with primary physical custody, she must reside within the district in order for the children to remain in the district"s schools.  The letter further stated that since Ms. Seger did not reside in the district, the children would no longer be permitted to attend school there.  Petitioner initiated this appeal on August 26, 2002, and requested interim relief.  Respondent chose not to oppose the request for interim relief in order to investigate the children"s residency while school was in session, and permitted the children to begin school in September 2002.  Petitioner asserts that he and Ms. Seger have joint custody of the children and have determined that it is in the children"s best interest to continue at the school they attended before their parents" divorce.

As a threshold matter, petitioner"s reply contains allegations and assertions not set forth in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ""275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Huber, et al., 41 Ed Dept Rep ___, Decision No. 14,676; Appeal of Karpoff, et al., 40 id. 459, Decision No. 14,527; Appeal of Taylor, 39 id. 712, Decision No. 14,357).  Therefore, while I have reviewed petitioner"s reply, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.  

Respondent requests that I consider two additional affidavits in response to issues raised in petitioner"s reply.  I accept these affidavits but have not considered those portions responsive to the new allegations in petitioner"s reply.  I also accept an additional affidavit submitted by Ms. Seger on October 30, 2002.

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 Perez, 42 Ed Dept Rep ___, Decision No. 14,779; Appeal of Thomas, 41 id. ___, Decision No. 14,622; Appeal of Oliver, 41 id. ___, Decision No. 14,603). A student"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Weaver, 39 id. 588, Decision No. 14,320; Appeal of Williams, 39 id. 73, Decision No. 14,177).  Where a child"s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children"s Aid Society v. Hendrickson, et al., 54 Misc. 337, 104 NYS 122, aff"d, 196 NY 551 ; Appeal of Weik and Teufel, 41 Ed Dept Rep ___, Decision No. 14,621 ; Appeal of Marilyn J., 41 id. ___, Decision No. 14,620 ).  Thus, where a court order awards custody to one parent, the child"s residence is presumed to be that of the custodial parent (Appeal of Weik and Teufel, supra ).  In cases where parents have been awarded joint custody or the child"s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child"s residency lies ultimately with the family (Appeal of Weik and Teufel , supra; Appeal of Cortes, 37 Ed Dept Rep 114, Decision No. 13,818 ).  However, when parents claim joint custody but do not produce proof of the child"s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Lavelanet, 39 Ed Dept Rep 56, Decision No. 14,171 ; Appeal of Razzano, 38 id. 782, Decision No. 14,142 ).

In the instant case, there is no dispute that petitioner resides within the district, Ms. Seger resides outside the district, and upon divorcing in January 2001, they were awarded joint custody.  Respondent argues that although petitioner and Ms. Seger may have joint legal custody, the children"s time is not divided between the two households and the children actually reside with Ms. Seger outside the district.  Respondent relies on surveillance conducted on the first five days of the school year to establish that the children reside solely with Ms. Seger.  On all five mornings, the children were observed leaving Ms. Seger"s residence with her and driving to a bus stop.

Petitioner explains the results of respondent"s surveillance by asserting that he and Ms. Seger have agreed that she will always have the children for the first week of school to ensure a smooth transition to new school schedules.  He contends that he and Ms. Seger have followed this practice for the past two years.  Petitioner also submits an affidavit from Greg Bleakley, who states that he watches the children weekly on the afternoons that Ms. Seger works, and that he drops them off at petitioner"s home four days a week when petitioner returns from work. 

While respondent"s surveillance raises questions as to the children"s residence, I find under the circumstances of this case that the surveillance undertaken for the first few days of the new school year is not dispositive (See, e.g., Appeal of Trapani, 40 Ed Dept Rep 653, Decision No. 14,576).  Petitioner and Ms. Seger, who have joint custody,  have provided a plausible explanation for the children"s presence at Ms. Seger"s on those days.  Similarly, while Mr. Bleakley"s affidavit is not conclusive, it lends support to petitioner"s contention that the children spend time with him at his residence in the district.

Consequently, I am not convinced in this case that respondent had a sufficient factual basis to determine that the children are not district residents (Appeal of Trapani, supra).  I therefore set aside respondent"s determination. 

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent permit Tyler and Alexa Seger to attend school in the Hendrick Hudson Central School District without the payment of tuition.

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