Decision No. 17,126
Appeal of DWAYNE PICTON, on behalf of his son TYLER, from action of the Board of Education of the Bay Shore Union Free School District regarding residency.
Decision No. 17,126
(July 19, 2017)
Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel
BERLIN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) that his son, Tyler, is not a district resident. The appeal must be dismissed.
According to an affidavit provided by respondent’s Director of Student Services and Central Registration (“director”), in or about November 2016, the district received information that petitioner and his son did not reside at their address of record within the school district (“in-district address”) and that, instead, Tyler was reported to reside outside the geographical confines of the district at a residence within the Brentwood Union Free School District (“out-of-district address”). The director averred that he subsequently researched records maintained by the New York State Department of Motor Vehicles which revealed information on vehicles that were registered to petitioner and Tyler’s mother. Both registrations listed addresses that were located outside of the district. Surveillance was then conducted at the in-district and out-of-district addresses on 12 separate mornings in January and February 2017 by the District Security Officer (“security officer”).
In his affidavit, the security officer averred that he conducted surveillance at the in-district address on the mornings of January 13, 17, 18, 19, and 20, and that he “never observed Tyler exit the  residence” (emphasis omitted) and “also never observed [p]etitioner’s [car] located at or within the vicinity of those premises....” The security officer also stated in his affidavit that he conducted surveillance at the out-of-district address on the mornings of January 23, 24, 25, 26, and 31, and February 1 and 2, and that he “regularly observed Tyler exit the  residence in advance of the school day” and further observed the vehicle registered to Tyler’s mother parked at the same address. In addition, the security officer stated that, on the mornings of January 27 and 30, he “observed Tyler being dropped off in the vicinity” of the middle school in the vehicle registered to Tyler’s mother.
By letter dated March 20, 2017, the director notified petitioner that Tyler was not entitled to attend district schools because petitioner was not a resident of the district and informed petitioner that Tyler’s last day of attendance would be March 27, 2017.
On March 23, 2017, a residency hearing was held with petitioner and Tyler’s mother. According to respondent, during the hearing, petitioner stated that he resides at an apartment located in the district with Tyler, that Tyler also stays with his mother “about two  to three  times per week” and that petitioner “essentially allows his son to choose where he stays.” Respondent also states that Tyler’s mother said that she drops Tyler off each morning to school. Respondent states that petitioner and Tyler’s mother claimed that there was “no custody agreement in place between them” and that their agreement with regard to Tyler was “all verbal.” Finally, respondent states that petitioner submitted a New York State driver’s license bearing an address located outside the district, together with a landlord affidavit and two utility bills dated “contemporaneously” with the district’s date of exclusion.
By letter dated March 27, 2017, respondent stated that the district’s determination to exclude the student from school was “upheld” and that Tyler’s last day was extended until March 31, 2017. This appeal ensued. Petitioner’s request for interim relief was granted on April 7, 2017.
Petitioner asserts that he and his son reside within the district and that Tyler has resided within the district for three years and intends to continue to reside within the district for the next six years. Petitioner states that Tyler also resides with his mother at the out-of-district address, spending “part time with his mother” and “full time” with him. Petitioner further states that “Tyler resides with me during the school week, and visits his mother during weekends” and that Tyler’s mother “provides transportation for Tyler to and from school.”
As part of the petition, petitioner submits a Temporary Residential Custody Agreement dated March 31, 2017, referred to in the petition as “a notarized letter stating the terms of [his and Tyler’s mother’s] agreement.” The document states that Tyler’s mother, “the residential custodial parent,” gives “temporary residential custody” to petitioner and further states that she gives her permission to petitioner to care for Tyler in his home, “obtain any medical treatment,” or “any economic, social, educational, or other services” needed by the child. Petitioner also submits a landlord affidavit dated March 22, 2017, listing Tyler as living at the in-district address for the lease term beginning November 15, 2016 and ending November 14, 2017, as well as an apartment lease renewal agreement for the same lease term dated November 4, 2016. Petitioner also includes two utility bills for gas and electric service for the February-March 2017 period.
Petitioner requests a determination that the student is a resident of the district and is entitled to attend its schools without the payment of tuition.
Respondent contends that the petition fails to state a claim upon which relief may be granted and that petitioner and his son resided outside the district during the 2016-2017 school year. Respondent also argues that petitioner failed to establish that he and Tyler’s mother have a joint custody arrangement or that Tyler divides his time between the two households pursuant to any agreement.
Education Law §3202(1) provides, in pertinent part, as follows:
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 §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 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. 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 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).
Initially, I note that the director avers that the Temporary Residential Custody Agreement attached to the petition was “never presented to the District during the residency hearing conducted on March 23, 2017.” In its memorandum of law, respondent argues that the district’s determination to exclude the student was neither arbitrary nor capricious and that any review of the district’s determination “should be based upon the information the [d]istrict possessed at the time the administrative decision was made,” citing Appeal of Lawrence (47 Ed Dept Rep 11, Decision No. 15,606) (“Lawrence”). However, Lawrence is factually distinguishable from the instant appeal. In Lawrence, petitioner requested that the Commissioner consider her correspondence to the district dated April 23, 2007, which included a “Notice of Readiness” for inspection of her claimed in-district address. While the Commissioner found that such evidence was not before respondent at the time of its determination and that respondent’s decision was not arbitrary and capricious based on the evidence before it, the decision in that case indicates that the appeal was commenced in or about December 2006 – at least four months before petitioner’s request that the Commissioner consider her April 23, 2007 correspondence as part of that appeal.
While the record in the instant appeal indicates that the Temporary Residential Custody Agreement, dated March 31, 2017, was not before respondent at the time its final residency determination was made, such document was submitted as part of the petition herein and respondent has had ample opportunity to, and did in fact, address it in its answer. Therefore, I have considered the document (Appeal of T.D., 54 Ed Dept Rep, Decision No. 16,715; Appeal of C.G., 54 id., Decision No. 16,642; Appeal of Stagno, 51 id., Decision No. 16,304).
Turning to the merits, as described above, petitioner submits an apartment lease agreement for the in-district address, signed and dated November 4, 2016, along with gas and electric service bills for the in-district address from March 2017. However, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779). In addition, this proof of residency submitted by petitioner is inconsistent with respondent’s surveillance of the in-district residence in which the security officer states that he never observed petitioner’s car located at or within the vicinity of the in-district residence during the five days of surveillance in January 2017. It also conflicts with the driver’s license showing an out-of-district address that petitioner submitted at the March 23, 2017 residency hearing.
Furthermore, with respect to Tyler, the apartment lease dated November 4, 2016 solely names petitioner as tenant and does not list Tyler as an occupant. However, the landlord affidavit dated March 22, 2017, submitted by petitioner, lists Tyler as living at the in-district address. The Temporary Residential Custody Agreement submitted by petitioner dated March 31, 2017, in which Tyler’s mother states that she is the “residential” custodial parent giving petitioner “temporary residential” custody, also appears to be in conflict, not only with petitioner’s statements that Tyler has (already) been living in the district for three years, but also with his statement that Tyler intends to (permanently) reside at the in-district address for the next six years. These documents – the landlord affidavit and Temporary Residential Custody Agreement – also post-date respondent’s initial exclusion letter of March 20, 2017, rendering them less persuasive than other evidence in the record (see e.g. Appeal of Alvarez, 54 Ed Dept Rep, Decision No. 16,661; Appeal of Friedman, 50 id., Decision No. 16,173).
As noted above, a child can have only one legal residence. To the extent that petitioner argues, through statements made in the petition, that Tyler is living with him “full time” in the district and visiting his mother “during weekends,” and that this arrangement is supported by an agreement between him and Tyler’s mother giving petitioner “temporary residential custody,” I find that petitioner has not met his burden of proving that his son is a resident of respondent’s district. Petitioner’s claims are contradicted by respondent’s surveillance evidence from 12 observations, showing that Tyler was never observed at the in-district address on five separate mornings in January 2017, and was regularly observed exiting the out-of-district address in advance of the school day on seven separate mornings in January and February 2017. Petitioner submits no reply to rebut or explain respondent’s surveillance evidence, nor offers any additional evidence to demonstrate Tyler’s physical presence in the district such as, for example, affidavits attesting to Tyler’s physical presence at the in-district residence or photographic evidence showing his physical presence therein.
I also note that petitioner’s argument in the petition is a shift from the argument he made at the March 23, 2017 residency hearing in which petitioner stated that Tyler lives with petitioner in the district and stays with his mother “about two  to three  times per week” and that petitioner “allows his son to choose where he stays.” At the time of the student’s exclusion, petitioner’s evidence consisted of his driver’s license with an out-of-district address, together with a landlord affidavit and two utility bills which, as respondent notes, were “contemporaneously dated with the [d]istrict’s date of exclusion.” There was no other evidence submitted of a joint custody agreement or evidence that Tyler’s time was divided between the two households. Based on the evidence in the record at the time of respondent’s determination, I cannot conclude that respondent’s determination to exclude Tyler at that time was arbitrary or capricious.
On this record, I find that petitioner has failed to carry his burden of proving that Tyler is physically present in the district or intends to permanently remain there. Thus, the appeal must be dismissed.
In light of this disposition, I need not address the parties’ remaining contentions.
Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on Tyler’s behalf at any time, should circumstances change, and to submit any new documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 While the initial letter dated March 20, 2017 was addressed to petitioner, the final exclusion letter was addressed to Tyler’s mother.
 Pursuant to §276.6 of the Commissioner’s regulations, I take administrative notice of the records on file with the State Education Department, which indicate that the petition in Lawrence was served on December 6, 2006 and the answer was served on January 2, 2007.