Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Valley Stream Union Free School District Thirteen regarding residency.

Decision No. 16,533

(August 28, 2013)

Frazer & Feldman, LLP, attorneys for respondent,

Christie R. Jacobson, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Union Free School District Thirteen ("respondent")that his son is not a district resident. The appeal must be dismissed.

In 2009, petitioner’s son enrolled in kindergarten in respondent’s district. At that time, petitioner and his wife apparently resided with petitioner’s mother at her home in the district (the “original address”). At some point thereafter, petitioner and his wife divorced.

Concerns regarding the student’s residency arose in December 2012, following a special education evaluation wherein he stated that he lives with his step-father and mother, but still sees his father often. Thereafter, the evaluator spoke with the student’s mother who stated that she had moved from the original address, but still resided with the student at another address in the district. The evaluator informed her that she would have to re-register the student at their new address. The student’s mother failed to do so.

In preparation for a Committee on Special Education (“CSE”) meeting, the mother submitted a Social/Developmental History Form in which she merely provided a U.S. Post Office Box (“P.O. Box”) number as her address. At the CSE meeting held on January 28, 2013, which petitioner apparently did not attend, it appears that the issue of residency was discussed. The mother refused to offer a street address and again would only provide a P.O. Box number.

On February 1, 2013, a teacher overheard the student tell another student that he was moving to a new home in Queens the next day but would still be attending respondent’s elementary school. Given the student’s statements and his mother’s failure to provide a new street Address within the district, respondent commenced a residency investigation.

According to respondent, on February 13, 2013, the elementary school principal contacted the student’s mother by telephone and, during the conversation, she admitted she no longer resided in the district. She also claimed that the student resided with petitioner at the original address but offered no evidence in support of that assertion.

By letter dated February 14, 2013, respondent’s residency officer notified the mother that, in order for her son to remain enrolled in the district’s elementary school, she must update his residency information by February 22, 2013. The mother failed to do so.

By letter dated February 26, 2013, both petitioner and the student’s mother were advised that the student was not entitled to attend the elementary school because he no longer resided at his original address within the district. However, they were afforded an opportunity to complete anew registration packet if their son continued to live in the district. They were also informed of their right to appeal the residency determination. A residency hearing was held on or about March 5, 2013.

At the hearing, the student’s mother claimed that she was still residing at the original address. She asserted that, although she was divorced and had a boyfriend, she continued to live with petitioner and their son in bedrooms located in the attic. Petitioner said little at the hearing. Subsequent to the residency hearing, respondent also performed an unannounced home visit to the original address. Petitioner was present, but neither the student nor the mother was there. When asked where the student was, petitioner stated that “something came up.”

By letter dated March 13, 2013, respondent’s residency designee notified petitioner and the student’s mother of his determination that the student was not a district resident and would be excluded from attending the district’s schools, effective March 22, 2013. This appeal ensued. Petitioner’s request for interim relief was granted on April 15, 2013.

In this appeal, petitioner contends that his son has been living with him at the original address since birth and continues to reside there with him for four days each week. He seeks an order that his son is a district resident entitled to attend school without payment of tuition.

Respondent maintains that its residency determination is not arbitrary and capricious, based on the record.

Respondent argues that, given the mother’s consistent conflicting statements and actions, it made a proper credibility determination, and its determination that the student does not reside within the district is reasonable.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No.15,924). “Residence” for purposes of Education Law §3202is 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 SchoolDist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484,Decision No. 15,924). 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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. 337affd, 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).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828). 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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On this record, I cannot conclude that petitioner has met his burden. Throughout the residency proceedings at the district, the parents claimed, alternatively, that the student continued to reside with his mother in the district at an undisclosed location or with both parents at the original address. Despite alleging that she lived in the district, the student’s mother refused to provide anything other than a P.O. Box as an address. Thereafter, she claimed that she lives with petitioner and her son in attic bedrooms at the original address and shares a bed with her son – despite being divorced from petitioner and in a relationship with another man. The mother’s explanation of the living situation was confusing, at best, and conflicts with the allegations in the petition in that she testified that she lives with her son in the attic of petitioner’s home while the petition asserts that she moved away after their divorce. Petitioner offered no significant information at the hearing, nor was any documentary evidence produced.

With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there isclear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of C.S.,48 Ed Dept Rep 497, Decision No. 15,929; Appeal of B.M., 48id. 441, Decision No. 15,909; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).

Upon reviewing the record, in particular the residency hearing transcript, I find no basis to substitute my judgment for that of respondent in finding not credible the parents’ claim that the student continued to reside in the district with his mother or, alternatively, with both parents. The record is replete with contradictions. There is an admission by the student that he lives with his mother and step-father. There were admissions to school personnel by the mother that she had moved from petitioner’s home and no longer resides in the school district, yet she testified at the hearing that she resides with her son in the attic at petitioner’s home.

Petitioner also asserts that his son resides with him in the district and provides a statement, consisting of one sentence, from his ex-wife granting him “residential custody.” The intended meaning of “residential custody” is not explained, though the term suggests that something less than full joint custody is intended. Petitioner has not alleged or proven that he provides support to or exercises parental control over his son. The evidence in the record raises a question about whether he is acting in a manner consistent with joint custody.

Petitioner’s actions – or lack thereof – throughout the district’s residency process is inconsistent with a laim that he is exercising parental rights over his son. The record is devoid of any communication, correspondence or any other interaction with respondent by petitioner to demonstrate that he is exerting the rights of a custodial parent. In fact, it appears that the first time petitioner participated in this matter was at the residency hearing when he appeared with his son’s mother. However, his participation was minimal, and he offered little information.

On the other hand, the record supports a finding that the mother is exercising the rights of a custodial parent, and assuming responsibility for petitioner’s son. During the scheduling of the CSE meeting, she expressly stated that she did not want petitioner to attend. Moreover, the Social/Developmental History Form that she submitted in connection with the CSE meeting lists “other family members” but fails to mention petitioner at all, while listing her son’s step-father.

Respondent’s residency officer also conducted a home visit to the original address at which he was told that petitioner’s son and his mother were not there. When asked for their whereabouts, petitioner gave an evasive answer, saying “something came up.”

The evidence submitted by respondent is far from overwhelming. However, the record is laced with inconsistencies in the explanations given by petitioner and his ex-wife relating to their living arrangements and custodial arrangements. On this record, I am unable to conclude that petitioner has met his burden of proof that his son actually resides with him or that he and his ex-wife share joint custody of the student and I decline to substitute my judgment for that of respondent.

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the school district for his son’s admission at any time (Appeal of D.F., 39 Ed Dept Rep 106, Decision No.14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180;Appeal of Smith, 39 id. 28, Decision No. 14,163) and to present any new information for respondent's consideration.

THE APPEAL IS DISMISSED.

END OF FILE