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Decision No. 15,288

Appeal of T.P., on behalf of her children N.P. and J.P., from action of the Board of Education of the Lindenhurst Union Free School District regarding residency.

Decision No. 15,288

(August 18, 2005)

Lamb & Barnosky, LLP, attorneys for respondent, Robert H. Cohen, Esq., of counsel

 

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Lindenhurst Union Free School District ("respondent") that her children, N.P. and J.P., are not district residents. The appeal must be sustained.

Petitioner's children have attended respondent's schools since September 2002. Petitioner resides within respondent's school district and her former husband resides outside respondent's district in Bayshore.

In accordance with a judgment of divorce by the New York State Supreme Court, Suffolk County, entered March 25, 2004, and the custody provision of a "Stipulation of Settlement," petitioner and her former husband have joint custody and share residential custody. N.P. and J.P. reside with their father Monday through Friday, 5:30 p.m. to 7 a.m., and with their mother from 7 a.m. to 5:30 p.m. The children reside with their parents on alternate weekends, except when their father works on Saturday, in which case the children remain with petitioner. The children are dropped off at petitioner's residence at 7 a.m. so that petitioner may put them on the school bus. At the end of the day, the children are dropped off by the school bus at petitioner's home, and petitioner returns them to her former husband's residence by 5:30 p.m. According to petitioner, this arrangement was established to accommodate the work schedules of petitioner, who works nights, and her former husband, who works days.

By letter dated April 19, 2005, the principal of respondent's middle school advised petitioner of his determination that N.P. was living predominantly in Bayshore, and that as of April 27, 2005, she was ineligible to attend the district's schools. The letter further notified petitioner of her right to present evidence regarding her daughter's residency. The record does not contain a corresponding letter regarding J.P.'s residency status. However, it appears that information regarding the residency of both children, including the judgment of divorce and the custody page of the "Stipulation of Settlement," was presented at a residency conference held on April 21, 2005.

By letter dated April 22, 2005, respondent's residency officer notified petitioner of his finding that her children were not district residents and that, following the completion of the 2004-2005 school year, they would be ineligible to attend respondent's schools. This appeal ensued. Petitioner's request for interim relief was denied on June 9, 2005.

Petitioner alleges that she and her husband have joint physical and residential custody of their children and that because she is a resident of respondent's district, the children should be permitted to attend respondent's schools. Petitioner also alleges that because her children's time is equally divided between two separate households and both parents assume day-to-day responsibility for the children, the decision regarding the children's residency rests with the family.

Respondent alleges that the appeal is untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Respondent's residency determination was issued on April 22, 2005 and the petition was filed more than 30 days later, on June 2, 2005. The Commissioner has previously excused delays in residency cases where, interalia, the facts suggest residency in the district, the delay is deminimus, and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy (Appeal of Faucett, 38 Ed Dept Rep 117, Decision No. 13,996; Appeal of Murphy, 37 id. 162, Decision No. 13,831). These factors are present here. Accordingly, I will not dismiss the appeal as untimely.

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).

In the instant case, there is no dispute that petitioner resides within the district, her former husband resides outside the district, and upon divorcing in 2004, they were awarded joint and shared residential custody. The record establishes the children's time is "essentially divided" between the parents' residences pursuant to the Stipulation of Settlement and there is no indication that the schedule set forth in the stipulation is not being followed. Therefore, the decision regarding the children's residence lies ultimately with the family. Accordingly, on this record, I find respondent's determination that the children are not entitled to attend its schools as district residents to be arbitrary and capricious.

THE APPEAL IS SUSTAINED.

It is ordered that respondent allow N.P. and J.P. to attend its schools in the Lindenhurst Union Free School District without the payment of tuition.

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