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Decision No. 15,771

Appeal of DONALD HOYT, on behalf of his children CAITLYN and AIDEN, from action of the Board of Education of the Putnam Valley Central School District regarding residency.

Decision 15,771

(June 26, 2008)

Kuntz, Spagnuolo and Murphy, P.C., attorneys for respondent, Leah L. Murphy and Mario L. Spagnuolo, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Putnam Valley Central School District (“respondent”) that his children, Caitlyn and Aiden, are not district residents.  The appeal must be sustained.

Petitioner’s children have attended respondent’s schools since September 2007.  Petitioner resides on Sherwood Road, within respondent’s district, and the children’s mother resides outside respondent’s district in Peekskill.

According to a custody order dated December 3, 2004, petitioner and his former wife have joint legal and physical custody of the children.  By letters dated March 18 and 19, 2008, respondent’s residency designee notified petitioner and his former wife of his determination that Caitlyn and Aiden were living in Peekskill with their mother.  By letter dated March 31, 2008, respondent’s superintendent of schools advised petitioner and his former wife that both children reside in Peekskill, and that as of April 7, 2008, the children would be excluded from the district’s schools.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 9, 2008.

Petitioner alleges that he and his former wife have joint physical custody of their children and that because petitioner is a resident of respondent’s district, the children should be permitted to attend respondent’s schools. Petitioner also explains that he started a new job in February 2008 and that during the months of February and March 2008, the children spent more time with their mother in Peekskill, because she was unemployed at that time.  Petitioner maintains that physical custody has returned to a 50/50 arrangement.

Respondent claims that the children reside with their mother, outside the district.  Respondent alleges that the custody order gives the children’s mother the vast majority of custodial time with the children.  Respondent also claims that its private investigator’s report reveals that the children reside with their mother.

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 Innocent, 44 Ed Dept Rep 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).  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 an appeal to the Commissioner, a 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; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

There is no dispute that petitioner resides within the district, the children’s mother resides outside the district, and upon divorce, both parents were awarded joint physical custody of the children.  Respondent argues that, although petitioner and his former wife have joint legal custody, the children’s time is not equally divided between the two households and the children actually reside with their mother.  Respondent relies on surveillance conducted on four days in March 2008 to support his claim.  Specifically, the surveillance reflects that petitioner’s daughter was observed leaving the mother’s residence two mornings and arriving at the mother’s address in the evening on another day.  Petitioner’s son was also observed leaving the mother’s residence one morning. 

Petitioner explains the results of respondent’s surveillance by asserting that the children spent more time with their mother in February and March 2008, while he was in training for a new job, but that physical custody has returned to a 50/50 arrangement.  In support of his position, petitioner produced affidavits from the children’s mother and grandmother stating that the petitioner and the children’s mother share physical custody of the children.

While respondent’s surveillance raises questions as to the children’s residence, on no occasion did the investigator observe the address within respondent’s district, the address at which petitioner maintains he has continuously resided Moreover, the fact that the children were observed at the mother’s residence on four occasions is not necessarily inconsistent with a joint custody arrangement.  Accordingly, I must conclude that the surveillance, for which petitioner has offered a plausible explanation, is insufficient to prove that the children reside outside respondent’s district. 

Moreover, I reject respondent’s argument that the court order only provides the father with “partial custody”.  The custody order does not address the current situation, i.e., where both parents reside in close proximity in New York State.  The custody order only addresses the following situations:  when both parties reside in Pennsylvania; when petitioner lives in New York State and the mother remains in Pennsylvania and when the mother is in Minnesota.  None of these situations apply here.  Accordingly, I am constrained to find, on the record before me, that respondent’s residency determination is based on insufficient evidence and is arbitrary and capricious.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Caitlyn and Aiden Hoyt to attend school in the Putnam Valley Central School District without the payment of tuition.

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