Decision No. 17,153
Appeal of H.A., on behalf of his son R.A., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.
Decision No. 17,153
(August 21, 2017)
Bernadette Gallagher-Gaffney, Esq., attorney for respondent
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that his son (“the student”) is not a district resident. The appeal must be dismissed.
At the time of this appeal, R.A. was a 7th-grade student attending respondent’s New Hyde Park Memorial High School. The record indicates that on August 16, 2016, petitioner and the student’s mother registered the student in respondent’s district and indicated that the student resided at an address within respondent’s district (the “in-district address”) along with his mother, two siblings, and his father.
The record indicates that at some point during the fall of 2016 respondent received anonymous information which called into question the residence of the student and his older brother and indicated that the two students may be residing at a residence in Queens (the “out-of-district address”). As a result, respondent conducted a residency investigation. An investigator retained by the district conducted surveillance at the out-of-district address on six mornings: September 20, 2016; September 21, 2016; September 22, 2016; September 26, 2016; September 28, 2016; and September 30, 2016. While petitioner disputes certain portions of the surveillance evidence, the surveillance report contained within the record indicates that on all but one of these dates, the student was observed exiting the out-of-district address. The record indicates that surveillance was also conducted at the in-district address between 6 a.m. and 8 a.m. on September 27, 2016 and September 29, 2016. The surveillance report indicates that the student was not observed exiting the in-district residence on either occasion, but that the student was present and on-time to school on both days.
By letter dated October 7, 2016, respondent notified petitioner of its determination that the student and his older brother were not entitled to attend the schools of the district based on their “actual residence elsewhere and temporary residence established for purposes of attending district schools.” Respondent provided petitioner with an opportunity to appeal the decision consistent with respondent’s policy. The record indicates that the student’s mother requested such appeal in a writing dated October 24, 2016. As a result, an administrative review was held on October 24, 2016.
An administrative review was conducted by respondent’s designee for residency determinations and was attended by petitioner and the student’s mother, respondent’s attendance supervisor, the administrative assistant to respondent’s superintendent, and the investigator hired by respondent.
At the administrative review, respondent’s investigator detailed the results of his investigation. However, petitioner disputed the accuracy of the surveillance report. Petitioner is a self-employed limousine driver and explained that he was working in Manhattan with the United Nations during the week in which the out-of-district surveillance was conducted. Petitioner testified that, as a result, the student was at the out-of-district residence that week.
Petitioner also testified that he purchased the four-bedroom in-district home jointly with his brother in 2014 and subsequently moved from the out-of-district address at issue in this appeal to the in-district home accompanied by his wife and their three children. Petitioner further testified that in January of 2016 his father suffered a stroke and moved into the in-district home so that petitioner could care for him. While the record is not clear, at some point after January 2016, petitioner’s brother and his teenage son also moved into the in-district home. Petitioner and the student’s mother testified that they are separated and that they share custody of the children. However, petitioner indicates that they lack a formal custody agreement.
The record indicates that when the student’s mother registered the student within respondent’s schools in August 2016, she indicated that she resided at the in-district home. However, she testified during the administrative review that she left the in-district home and returned to the out-of-district address in May 2016 as a result of the stress in caring for her father-in-law.
Petitioner maintains that his brother and his teenage son occupy the second floor of the in-district home, while petitioner shares the first floor with his father and the children. Petitioner further asserts that when the student and his two brothers stay with him, they either sleep with their cousin or in petitioner’s room while he sleeps on an air mattress in a spare bedroom. Petitioner also testified that as a result of the student’s fluctuating sports schedules, he goes back and forth between both homes, sometimes staying four or five nights at each residence. Petitioner further testified that all of the student’s personal belongings, including his clothing, are at the out-of-district residence because he only comes to the in-district residence to sleep.
At the conclusion of the administrative review, and with the permission of petitioner, respondent conducted a home visit of the in-district address. The record indicates that respondent’s attendance officer and the investigator observed the bedroom which petitioner purports to share with the student when he stays at the in-district home, and noted that it contained a full-sized bed, a PlayStation gaming system, and several games. The record further indicates that they observed a small dresser containing petitioner’s clothing, and a “virtually empty closet.”
By letter dated December 15, 2016, respondent’s administrative review officer informed petitioner of her determination that, based upon the evidence presented at the administrative review, the students were not bona fide residents of respondent’s district. The letter further indicated that consistent with district policy, because petitioner’s oldest son was a senior scheduled to graduate, he would be permitted to remain in attendance until June 30, 2017. Nevertheless, the letter indicated that the student would be excluded from school on January 6, 2017. This appeal ensued. Petitioner’s request for interim relief was granted on January 18, 2017.
Petitioner asserts that he and his wife, the student’s mother, are separated and share custody of the student and his two siblings (who are not the subjects of this appeal). Petitioner asserts that he resides in the district, and that the student splits time between petitioner’s in-district residence and his mother’s out-of-district residence which is located just outside the boundaries of the district. Therefore, petitioner contends that because he shares custody of the student with the student’s mother and that the student sometimes stays with him at the home he owns within the district, the student should be deemed a resident of the district. Petitioner seeks a determination that the student is a resident of respondent’s district and entitled to attend school in the district without the payment of tuition.
Respondent contends that the petition must be dismissed for improper service. Respondent further contends that its determination that the student is not a district resident, is rational and supported by the record and, therefore, was not arbitrary, capricious or unreasonable.
Turning first to a procedural matter, the appeal must be dismissed for failure to effectuate personal service. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).
Petitioner’s affidavit of service indicates that the petition was served on the administrative assistant to the superintendent on January 5, 2017 at 77 Landau Avenue, Floral Park, New York. Respondent denies that service was made upon any person authorized to accept service (see 8 NYCRR §275.8[a]) and submits an affidavit from the administrative assistant to the superintendent which states that he has not been designated to accept service of process. In essence, the assistant to the superintendent asserts that, on Thursday, January 5, 2017, he was handed an envelope by an unidentified individual, the contents of which were not identified. He indicates that he was not made aware of the substance of the documents or that they were being presented for legal service of process. An assistant to the superintendent is not one of the individuals explicitly authorized by §275.8(a) of the Commissioner’s regulations on whom service upon a school district may be properly effected. Indeed, respondent denies that service was made upon any person authorized by it to accept service (see 8 NYCRR §275.8[a]) and, as noted above, submits an affidavit from the assistant to the superintendent stating that he is not authorized to accept service. Petitioner submits no reply to respondent’s claim of defective service. Consequently, because service was defective, jurisdiction over respondent is lacking and the appeal must be dismissed (Appeal of Miley, 56 Ed Dept Rep, Decision No. 17,079; Appeal of Khan, 51 id., Decision No. 16,287).
Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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).
For purposes of Education Law §3202(1), a person can only have one legal residence (Appeal of Myers, 56 Ed Dept Rep, Decision No. 16,927; Appeals of Moore, 49 id. 158, Decision No. 15,985; Appeal of Reynolds, 41 id. 32, Decision No. 14,604;). Moreover, 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).
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).
On this record, I am unable to conclude that petitioner has met his burden of proof. According to petitioner, although there is no formal custody agreement, he shares custody of the children with his wife, from whom he is separated and the children split their time equally between both homes.
As noted above, where the parents have proven that the child’s time is essentially divided between two households located in two different school districts, the family decides which one is the student’s legal residence (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935). However, it is not sufficient to simply assert that the student’s time is essentially divided between the two households; there must be proof that the student is in fact dividing his or her time between his or her parents (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Williams, 42 id. 8, Decision No. 14,756; Appeal of Lavelancet, 39 id. 56, Decision No. 14,171).
Here, petitioner testified that in an average week, the student spends four nights per week with him at the in-district residence and the student’s mother testified that in an average week, the student spends three nights per week with her at the out-of-district residence. Beyond these conclusory assertions, petitioner has provided no other evidence that his son is actually spending even part of his time living at the in-district residence.
While respondent’s surveillance evidence is not overwhelming, on this record I find that petitioner has not adequately explained why the student was observed exiting the out-of-district residence with his mother on five of the six surveillance days. At the administrative review, petitioner testified that he was working at the United Nations “that whole week” the surveillance was conducted and the student stayed with his mother. However, it is not clear from the record what petitioner meant by “that whole week” since the surveillance was conducted on Tuesday, Wednesday and Thursday of one week and Monday, Wednesday and Friday of the following week. In any case, petitioner has provided no evidence, such as time sheets or other business records, to corroborate that he in fact was working away from home on the dates the surveillance was conducted. Given the inconsistencies on petitioner’s part that were shown on this record, in the absence of such corroborating evidence, I cannot conclude that petitioner has adequately explained respondent’s surveillance evidence on the out-of-district residence.
Moreover, in the Registration Form filed by petitioner and his wife for the student on August 16, 2016, they attest that both of them reside at the in-district residence. No mention is made of the student spending time with his mother at the out-of-district residence and petitioner has provided no satisfactory explanation of this discrepancy in this appeal, particularly with respect to the claims of petitioner’s wife that she moved out of the in-district residence in May 2016. The documentary evidence submitted by petitioner consists of the deed to the in-district home, an envelope from the Nassau County Police Activity League, envelopes from two different banks, and an EZ Pass statement, all bearing the in-district address. Each of these documents is consistent with petitioner’s ownership of the in-district address. However, they are contradicted by petitioner’s driver’s license, which bears the out-of-district address. Given that petitioner operates a limousine business, and he testified at the administrative review that he and his family moved into the in-district address after the home was purchased in November 2014, his failure to file a change of address in accordance with Department of Motor Vehicles requirements by the time of the administrative review almost two years later is difficult to explain and it suggests that he may not be residing at the in-district address. The documentary evidence he has submitted to establish that he actually resides at the in-district address is not persuasive.
On this record, the most telling evidence that the student is not actually residing at the in-district address relates to the absence of the student’s personal belongings at such residence. With respect to his sons, petitioner himself testified that he has a television, a gaming system and a bed for their use at the in-district address, but that “... all their stuff, you know, [the] games, everything is there [at the out-of-district address].” Such statement is supported by respondent’s in-home visit which did not observe the student’s clothing or other personal belongings at the in-district address. Such evidence is inconsistent with petitioner’s contention that the student actually resides at the in-district residence. Although petitioner does own the in-district address, such ownership is not sufficient to establish residence within the district. As a result, the evidence submitted by petitioner on appeal is not sufficient to rebut respondent’s evidence that the student is not physically present at the in-district residence.
Therefore, on this record petitioner has failed to carry his burden of establishing the student’s physical presence and intent to remain in respondent’s district. Accordingly, I will not disturb respondent’s determination that the student is not a district resident.
In light of this disposition, I need not address the parties’ remaining contentions.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the student’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner contends that the investigator could not have observed the student leaving the out-of-district residence on September 26, 2016 because the student was absent from school that day. This is denied by respondent, which alleges that the student submitted a note for a doctor’s visit that day, and that this is not inconsistent with an observation of the student leaving the out-of-district residence that morning with his mother.
 Petitioner disputes the accuracy of the surveillance report and contends that the student was absent from school on September 27, 2016. Petitioner also asserts that the student’s scheduled arrival time on September 29, 2016 was not until after 8:47 a.m., consistent with his class schedule, which was well after respondent’s surveillance ended. The investigator’s report confirms that the student was absent from school on September 27, 2016, though his testimony at the October 24, 2016 administrative review erroneously indicates otherwise. Thus, the surveillance of the in-district residence on September 27, 2016 is not probative of whether the student was at the in-district residence that day. Similarly, the student’s late starting time on September 29, 2016, which is admitted by respondent, renders the surveillance on that day suspect. Accordingly, I have disregarded the surveillance on both dates.