Appeal of NILOUFAR PARHAMI, on behalf of her son RAYMOND, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 16,085

(July 2, 2010)

Murray Honig, Esq., attorney for petitioner

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that her son, Raymond, is not a district resident.  The appeal must be dismissed.

On October 15, 2009, the office of the district’s registrar (“registrar”) received an anonymous telephone call with information that petitioner and Raymond were not living in the district, prompting the registrar to commence an investigation.  According to respondent, Raymond had been permitted to attend school in the district since 1998 based on petitioner‘s representation that she resided within the district in an apartment on Wooleys Lane.  The registrar hired an investigator who conducted surveillance on 13 weekdays over a five-month period between October 2009 and February 2010.  According to the surveillance report, the investigator observed Raymond and petitioner’s husband exiting an apartment on Little Neck Parkway in Little Neck, outside the district, on 10 of the 13 days.  The investigator also observed petitioner at that residence on two occasions, and, significantly, never observed Raymond at the Wooleys Lane apartment.  According to the registrar, she also learned that petitioner and her husband had obtained a mortgage together for the Little Neck residence in 2004, and both had registered to vote in Queens County using the Little Neck address.

By letter dated February 5, 2010, the registrar requested that petitioner provide information about Raymond’s residency or he would be excluded from the district’s schools as of February 23, 2010.  At a hearing on February 23, 2010, petitioner provided documents addressed to her at Wooleys Lane and explained that she lived there with Raymond because she and her husband were separated.  According to the registrar, when presented with the surveillance information, petitioner responded that they had been staying at the Little Neck residence because there had been a fire at Wooleys Lane, and that her husband had forged her signature on the voter registration card.  However, when queried about the car consistently observed in space #44 at the Little Neck apartment building, the registrar states that petitioner admitted that it belonged to her and eventually admitted that she lived at the Little Neck residence.  Petitioner then asked whether she would have to pull Raymond out of school that same day, and, when the registrar replied in the negative, petitioner inquired whether he could complete the semester.

By letter dated February 23, 2010, the registrar notified petitioner of her determination that she and Raymond were not district residents and that he would be excluded from the district’s schools as of February 26, 2010.  Petitioner appealed this determination to respondent, who denied her appeal on March 8, 2010.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 24, 2010.

Petitioner asserts that she and Raymond reside on Wooleys Lane, that she and her husband are separated, and that Raymond visits his father in Little Neck every weekend but does use not use the Little Neck address as his residence.  She seeks a determination that she and Raymond are district residents and that Raymond is entitled to attend school in the district without the payment of tuition.

Respondent asserts that the petition fails to state a claim upon which relief may be granted.  Respondent contends that its determination was rational and petitioner has failed to rebut the presumption that Raymond resides with her outside the district.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

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.P., 45 Ed Dept Rep 156, Decision No. 15,288).  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.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  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 Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

Petitioner has provided no credible evidence that she and her husband are separated or that Raymond is dividing his time between them.  Where a child’s parents claim to live apart, 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.  I find that petitioner has failed to meet her burden of proof here.

As noted above, the registrar avers that petitioner admitted using the car observed in parking space #44 in Little Neck and admitted living there.  The investigator’s surveillance report supports that determination.  Petitioner and Raymond were repeatedly observed at the Little Neck residence and were never observed at Wooleys Lane on 13 different weekdays over five months.

Respondent contends that petitioner has actually been living in the Little Neck apartment with her husband since at least 2004, based on the joint mortgage statement and voter registration.  The registrar avers that she did not find petitioner’s explanation that her husband forged her voter registration card to be credible, and I find nothing in the record to contradict the registrar’s conclusion.  In addition, following the February 23, 2010 hearing, the registrar investigated the fire damage at Wooleys Lane upon which petitioner relied to explain her presence in Little Neck.  While there was a fire at Wooleys Lane, the property management company informed the registrar that the B building where petitioner allegedly resided was evacuated for only two days – February 18 and 19, 2010 - because the electricity was out, it was not part of the building that was uninhabitable due to fire damage, and its occupants were permitted to return on Saturday, February 20, 2010.  Moreover, the investigator observed petitioner’s husband drive Raymond from Little Neck on nine days prior to the dates of the fire and on February 23, 2010.

Additionally, respondent alleges that the Great Neck apartment is a two-bedroom apartment owned by one of petitioner’s sisters, who resides there with her own two children along with their grandfather.  One of the investigators noted that a name other than petitioner’s was on the building directory for the apartment where petitioner allegedly resided.  Furthermore, petitioner personally accepted the registrar’s February 23, 2010 letter the next day at the Little Neck residence.

On the record before me, petitioner has failed to meet her burden of proof that she resides in the district.  Therefore, I cannot conclude that respondent’s determination was arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE.