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Decision No. 14,932

Appeal of SHERRI and MICHAEL KLIPPER, on behalf of their son SCOTT, from action of the Board of Education of the Syosset Central School District regarding residency.

 

Decision No. 14,932

 

(August 19, 2003)

 

Law Offices of Vanessa Sheehan, attorney for respondent, Raymond Kennan, Esq., of counsel

 

CATE, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Syosset Central School District ("respondent") that their son, Scott, is not a district resident.  The appeal must be sustained.

Petitioners were divorced in 1999.  Their Judgment of Divorce states that they have joint custody of Scott, with Mr. Klipper having physical custody.  Mr. Klipper apparently resided within respondent"s district at the time of the divorce.  In May 2002 he moved out of the district.  It is undisputed that Ms. Klipper resides within the district.  Scott was registered for the 2002-2003 school year in respondent"s high school using his mother"s address. 

In November 2002, while investigating the residency of two other students, the district received information that Scott was being driven to school from Mr. Klipper"s residence.  Thereafter, the district conducted an investigation that included surveillance.  A residency hearing was held on March 26, 2003, before a hearing officer.  By decision dated March 27, 2003, the hearing officer determined that Scott was not a district resident.  The hearing officer recognized that when a child divides time between two households the parents may designate the child"s residence.  He found, however, that neither parent had made such a designation and he examined the totality of circumstances to determine Scott"s residence.  By letter dated March 28, 2003, respondent"s superintendent notified petitioners that she had adopted the hearing officer"s decision.  This appeal ensued.  Petitioners" request for interim relief was granted on April 14, 2003.

Petitioners contend that Scott spends time at the homes of both parents but resides with Ms. Klipper, within the district.   Petitioners assert that despite the wording of their Judgment of Divorce, they have designated Ms. Klipper"s residence as Scott"s permanent residence and that they intend to seek modification of that judgment to reflect Scott"s actual residence.  Petitioners request a determination that Scott is a district resident.

Respondent contends that Mr. Klipper is the custodial parent and that Scott actually resides with him.  Respondent asserts that petitioners testified that Scott is staying with Ms. Klipper in order to attend district schools and that there is no evidence that Scott maintains significant community ties or that he intends to remain in the district. 

As a threshold matter, petitioners" reply affidavits do not comply with the Commissioner"s regulations.  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 240, Decision No. 14,676).  Furthermore, the reply affidavits were not served upon respondent pursuant to "275.14 of the Commissioner"s regulations.  Therefore, I have not considered the reply affidavits or the response to them in rendering this decision.

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 J.M., 42 Ed Dept Rep __, Decision No. 14,783; Appeal of Perez, 42 id.  ___, Decision No. 14,779; Appeal of Thomas, 41 id. 84, Decision No. 14,622).  A student"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Eveillard, 42 Ed Dept Rep __, Decision No. 14,782; Appeal of Donohue, 41 id. 26, Decision No. 14,601; Appeal of Weaver, 39 id. 588, Decision No. 14,320).  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, aff"d, 196 NY 551 ; Appeal of Weik and Teufel, 41 Ed Dept Rep 80, Decision No. 14,621 ).  In cases where parents have been awarded joint custody and 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 this case, respondent relies primarily on surveillance conducted by its investigator to establish that Scott resides outside the district.  Surveillance was conducted at Mr. Klipper"s residence on the mornings of January 14, 16, 23 and 28, February 25 and March 4, 2003.  The record indicates that Scott was not seen at Mr. Klipper"s residence on the first two days and that he may have been one of three young men observed on January 23 and January 28, 2003.  Respondent"s assistant principal, who viewed the surveillance tape, positively identified Scott as one of three young men leaving Mr. Klipper"s house on February 25 and March 4, 2003 only.  Respondent also contends that at the residency hearing, Mr. Klipper refused to quantify how often Scott stays at his house and he expressed his desire that Scott be able to enjoy the residential environment at his home.  Respondent also states that there was conflicting testimony in that Ms. Klipper testified that Scott started residing with her in March 2002, while Mr. Klipper testified that Scott began living with Ms. Klipper in May or June 2002.

I do not find the surveillance indicating that Scott left Mr. Klipper"s house on, at most, four mornings over the course of eight weeks to be dispositive or inconsistent with petitioners" contention that Scott divides his time between his parents" residences.  While Mr. Klipper was reluctant to quantify the amount of time Scott spends at his house, Ms. Klipper testified that Scott lives with her 75-90% of the time.  Petitioners have joint custody of Scott and the record shows that petitioners have agreed to have Scott divide his time between them.  Additionally, petitioners designated Scott"s residence for the purposes of "3202 when he was enrolled using his mother"s address as his residence.  On the record before me, I find the evidence presented by respondent to be insufficient to support a determination that Scott resides outside the district with Mr. Klipper and I, therefore, set aside that determination (Appeal of Trapani, 40 Ed Dept Rep 653, Decision No. 14,576).

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent allow Scott Klipper to attend school in the Syosset Central School District without the payment of tuition.

END OF FILE