Appeal of MICHAEL G. REID, on behalf of his daughter KASEY, from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.

Decision No. 15,270

(August 5, 2005)

Dubin & Sommerstein, LLP, attorneys for petitioner, Robert B. Sommerstein, Esq., of counsel

Hodgson Russ, LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Cleveland Hill Union Free School District ("respondent") that his daughter, Kasey, is not a district resident. The appeal must be dismissed.

Petitioner resides in the Town of Cheektowaga, within respondent's district. Petitioner's ex-wife resides in Depew, outside respondent's district. During October 2004, respondent's high school principal was made aware that Kasey might be living with her mother in Depew. Thereafter, respondent's superintendent ordered an investigation.

Surveillance was conducted during the month of November 2004. On the school mornings of November 1, 3 and 5, 2004, a private investigator did not observe Kasey exiting petitioner's home to attend school. On the mornings of November 18, 19, 22 and 23, 2004, Kasey was observed leaving her mother's home in her mother's car and being dropped off at school.

Based on the results of the November 2004 surveillance, respondent's superintendent notified Kasey's mother, by letter dated December 3, 2004, of his determination that Kasey lived with her mother in Depew and was therefore a non-resident of the school district. Kasey's last day of attendance at Cleveland Hill High School was to be December 23, 2004.

Prior to the date of exclusion, the superintendent of schools gave Kasey's mother an opportunity to submit information regarding Kasey's right to attend respondent's district. A meeting was held with petitioner and Kasey's grandmother on December 14, 2004. At that meeting, petitioner explained that Kasey was spending more time than usual with her mother because petitioner was in an automobile accident in August 2003, which left him with injuries that made it difficult for him to care for Kasey. After the December 14, 2004 meeting, respondent's superintendent decided that the residency determination would stand. This appeal ensued. Respondent agreed to allow Kasey to continue attending its high school pending this decision.

Petitioner claims that, although he shares joint custody of Kasey with his ex-wife, Kasey resides with him in excess of 50% of the time. Petitioner also claims that, since August 2003, Kasey has spent more time living with her mother because petitioner is recuperating from injuries sustained in an automobile accident.

Respondent contends that its surveillance substantiates its determination that Kasey resides in Depew with her mother and is thus not entitled to attend its schools. Respondent also asserts that petitioner has not demonstrated how or why injuries sustained from his August 2003 accident prevent Kasey from residing with him. Additionally, respondent requests that I reject petitioner's reply because it is untimely.

A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR �275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (id.). Respondent served its answer by regular mail on April 5, 2005. Petitioner's reply was served on May 25, 2005, well beyond the allowable time frame. Accordingly, petitioner's reply is untimely and I have not considered it or the affidavits submitted by respondent in response to the reply.

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 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 �3202 is established by one's 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 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 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 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 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 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 Williams, 42 Ed Dept Rep 8, Decision No. 14,756; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171).

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 �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

In this case, petitioner submitted little documentation or evidence of Kasey's residence other than his judgment of divorce granting him primary residential custody and conclusory statements that Kasey resides with him more than 50% of the time. This is contradicted by observations made by private investigators during seven days of surveillance where Kasey was only seen leaving for school from her mother's residence in Depew. Furthermore, petitioner admits that Kasey stays with her mother more often since his August 2003 automobile accident.

Therefore, I find petitioner's evidence insufficient to support his claim of Kasey's residency and conclude that petitioner has failed to meet his burden of proof. Accordingly, based on the record before me, I do not find that respondent's determination was arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of his daughter at any time should circumstances change (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of Holder, 44 id. 32, Decision No. 15,088).

THE APPEAL IS DISMISSED.

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