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Decision No. 16,552

 

 Appeal of a STUDENT WITH A DISABILITY, by his father, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,552

(September 16, 2013)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that his son (the “student”), is not a district resident.1 The appeal must be dismissed.

Since September 2006, the student has been enrolled in respondent’s schools based on petitioner’s representation that the student resides with him at an address within the district (“Baldwin address”). In October 2011, respondent commenced an investigation into the student’s residency based on information provided to the district that the student was in fact living outside the district with his mother. During the time periods relevant in the instant appeal, the mother resided at two out-of-district locations, first in Westbury (“Westbury address”) and then in Freeport (“Freeport address”).

The district conducted surveillance at the Baldwin address on the mornings of October 17 and 18, 2011 and at the Westbury address on the mornings of October 14, 17, 18,19 and 20, 2011. During the surveillance, the student was not observed at the Baldwin address, but was observed leaving the Westbury address on four mornings.

By letter dated October 20, 2011, respondent’s director of pupil services (“director”) notified petitioner and the mother that the student’s residency was in question and provided them with an opportunity to submit additional

Two handwritten notes were sent to my Office of Counsel with the petition. These notes were signed by the student’s mother, not by petitioner. No application for their consideration was made pursuant to 8 NYCRR §276.5, nor does it appear that they were served on respondent. Accordingly, I have not considered their contents in rendering a determination in this appeal. However, because the notes indicate that the student has an individualized education program, I have so indicated in this decision and have not used the parents’ or student’s names. 1

information by October 26, 2011. In response to this notice, the mother explained that petitioner was in the hospital. Subsequently, the district allowed the student to remain in its schools.

The district conducted further surveillance at the Baldwin address on the mornings of October 26, 27, 28 and December 2, 2011 and the student was observed at the Baldwin address on each morning. On or about April 17, 2012, the mother informed the district that she was moving to the Freeport address and that the student would be residing with her temporarily due to petitioner’s hospitalization. The district continued to allow the student to attend its schools.

Surveillance was also conducted at the Freeport address on five weekday mornings between July 23 and 30, 2012. On each of the five mornings, the student was observed leaving at the Freeport address with his mother. The district also surveilled the Freeport address on September 4, 5, 6, 7, and 10, 2012 and the Baldwin address on September 5 and 6, 2012. The student was observed at the Freeport address on at least four of the five surveillance mornings, but was not observed at the Baldwin address.

By letter dated September 11, 2012, the director informed petitioner and the mother that the student would be excluded from its schools on September 28, 2012. The letter also stated that a meeting would be held on September 20, 2012, at which petitioner and the mother could present documentary evidence related to residency. According to respondent, on September 20, 2012, the student’s mother indicated to the director that petitioner does not drive and thus the mother transports the student to school on occasion. Respondent states that, on September 20, 2012, the director also spoke to petitioner, who indicated that he was unaware that the location in which the student resided while attending summer school mattered for residency purposes. The student was excluded from respondent’s schools on September 28, 2012. This appeal ensued. Petitioner’s request for interim relief was denied on October 4, 2012.

Petitioner asserts that the student resides with him at the Baldwin address within respondent’s district and is entitled to attend school without the payment of tuition.

Respondent contends that petitioner fails to state a claim upon which relief may be granted. Respondent maintains that the student resides with his mother outside the district, and that the mother uses petitioner’s address

only for the purpose of registering the student in respondent’s schools. Respondent argues that petitioner has failed to substantiate his claims that the student resides with him and that its residency determination is in all respects proper.

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 School Dist., 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). 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). 3

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 Rep295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

There appears to be no dispute that petitioner resides within respondent’s district. The central issue in this case is whether the student resides with petitioner in the district or with his mother outside the district. On this issue, petitioner has failed to carry his burden of proof.

Petitioner claims in the petition that the student resides with him but spends weekends at his mother’s residence, yet he offers no credible explanation for the July and September 2012 surveillance evidence during which the student was observed leaving his mother’s Free port residence on nine out of 10 weekday mornings on which surveillance was conducted. Indeed, in its verified answer, respondent asserts that in conversations with the director on September 20, 2012, petitioner stated with respect to the July 2012 surveillance that he was not aware that the “student could not reside with his mother while attending summer school,” and the mother explained that, because petitioner does not drive, she drives the student to school on occasion.

Petitioner fails to provide any explanation for the surveillance in his petition and does not assert or establish that he and the mother have joint custody, that the student’s time is divided between their households and that both parents assume responsibility for him. Instead, in the petition, petitioner explains only that the student is “very much loved by” his parents and that he spends weekends with his mother in Freeport, which is inconsistent with the surveillance conducted by respondent on weekday mornings. The only evidence petitioner submits to support his claim that the student lives with him are: (1) a statement signed by 12 “neighbors and friends” indicating that the student lives with petitioner; and (2) a statement signed by the student’s mother and 10 “relatives and friends” that the student lives with petitioner and spends weekends with her in Freeport.

In light of the paucity of evidence submitted by petitioner and the fact that he provides no explanation of the surveillance evidence in his petition, I cannot conclude that he has carried his burden of proof in this case.

In light of this disposition, I need not address the parties’ remaining contentions.

While the appeal must be dismissed, I note that petitioner has the right to reapply to the district for the student’s admission at any time should circumstances change.

THE APPEAL IS DISMISSED. END OF FILE