Appeal of CYNTHIA FRANKLIN-BOYD and LEROY GRAHAM, on behalf of their son ELIJAH C. GRAHAM, from action of the Board of Education of the South Colonie Central School District regarding residency.

Decision No. 15,251

(July 15, 2005)

Tabner, Ryan & Keniry, attorneys for respondent, Tracy L. Bullett, Esq., of counsel


Petitioners appeal the determination of the Board of Education of the South Colonie Central School District ("respondent") that their son, Elijah, is not a district resident. The appeal must be dismissed.

Petitioner Franklin-Boyd, Elijahís mother, resides on Jester Court in Schenectady, within respondentís district. Petitioner Graham, Elijahís father, resides on Ontario Street, Albany, in a neighboring district. In December 2004, after district representatives obtained information suggesting that Elijah was not residing at his motherís address on Jester Court, the district hired an investigator to conduct surveillance.

By letter dated January 20, 2005, the high school principal notified petitioner Franklin-Boyd that Elijah would be excluded from school as of January 31, 2005. By letter dated January 21, 2005, respondentís superintendent notified both petitioners of a scheduled hearing on January 26, 2005. On that date, the superintendent informed petitioners that based on the hearing evidence, he determined that Elijah was not a district resident and would be dropped from enrollment as of February 7, 2005. This appeal ensued. Petitionersí request for interim relief was granted on February 2, 2005.

Petitioners assert that Elijah has attended school within the district for the past four years and that they have designated his motherís address in the district as his residence for educational purposes. Respondent contends that petitioners have failed to sustain their burden of proving that Elijah is a district resident.

I must first address two procedural issues. Petitioners submit three exhibits with their memorandum of law. One exhibit, a notarized statement by petitioners designating Jester Court as Elijahís residence for educational purposes, was attached as an exhibit to the petition and is already in the record. The other exhibits are new but predate the petition, and petitioners offer no reason why they could not have been included with the petition. A memorandum of law should consist of arguments of law (8 NYCRR ß276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540). Therefore, I have not considered petitionersí two new exhibits. Respondent requests permission to submit a reply memorandum of law in response to petitionersí reply and memorandum of law, and in particular, to petitionersí new exhibits. Since I have excluded those exhibits, there is no reason to consider respondentís reply memorandum.

Education Law ß3202(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 scho ol districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law ß3202 is established by oneís physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

Where a childís parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Childrenís Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Williams, 42 id. 8, Decision No. 14,756). In cases where parents have joint custody, the childís time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the childís residency lies ultimately with the family (Appeal of T.K. , 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849; Appeal of Weik and Teufel, 41 id. 80, Decision No. 14,621). However, when parents claim joint custody but do not produce proof of the childís 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 Williams, 42 Ed Dept Rep 8, Decision No. 14,756; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171).

Petitioners, who are divorced, assert that they have designated respondentís district as Elijahís residence for educational purposes. However, they have failed to establish that Elijahís time is essentially divided between them.

At the hearing, only petitioner Franklin-Boyd appeared for petitioners. She presented an "Opt-Out" Agreement ("Agreement") executed between petitioners on May 18, 2002 and filed with the Albany County Clerk. Paragraph ten of the Agreement provides that petitioners agree to share joint legal custody of Elijah, but with petitioner Graham retaining primary physical custody and petitioner Franklin-Boyd having custody during part of summer vacation, certain holidays and other times as agreed between them. Based on the Agreement, Elijah is not essentially dividing his time between his parentsí residences, but is residing with his primary custodian, his father, outside the district.

In their petition, petitioners allege different living arrangements from those in the Agreement. They state that Elijah resides at both addresses, staying with his mother every other weekend, every other Wednesday, every other holiday and school vacation, and at other times as they agree. According to respondent, however, at the hearing petitioner Franklin-Boyd was unable to state how much time Elijah spends at each residence. Moreover, petitioners admit in the petition that Elijah intends to continue to reside with his primary custodian, namely, his father, who resides outside the district.

Respondentís investigator conducted three days of surveillance at the motherís residence. On the mornings of December 3, 6 and 8, 2004, the investigator observed the school bus arrive at and depart from the address at Jester Court, but did not see Elijah exit the residence even though he was in school on those days. Petitioners have not only failed to produce any evidence to counter respondentís surveillance on these dates, but have also failed to present any affirmative evidence demonstrating Elijahís actual presence at his motherís home other than their conclusory statements. In addition, petitioner Graham failed to avail himself of the opportunity to appear at the hearing and present his own testimony.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). 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 petitioner seeks relief (8 NYCRR ß275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Based on the record before me, I find that petitioners have failed to rebut the presumption that Elijah resides with his primary custodial parent outside the district. I cannot conclude, therefore, that respondent acted arbitrarily or capriciously in determining that petitionersí son is not a district resident.

While the appeal must be dismissed, I note that petitioners retain the right to reapply to the district for admission on Elijahís behalf at any time and to present any new information for respondentís consideration (Appeal of OíBrien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Santoianni, 40 id. 237, Decision No. 14,470).