Decision No. 17,154
Appeal of H.A., on behalf of his son S.A., from action of the Board of Education of the New Hyde Park-Garden City Park Union Free School District regarding residency.
Decision No. 17,154
(August 21, 2017)
Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the New Hyde Park-Garden City Park Union Free School District (“respondent”) that his son (“the student”) is not a district resident. The appeal must be dismissed.
During the 2016-2017 school year, the student was enrolled in respondent’s district and attended the Manor Oaks School. According to petitioner, the student resides with petitioner at his house within the district (“in-district address”). Petitioner asserts that he is separated from his wife, who lives outside the district in Queens (“out-of-district address”), but that together they “made the decision that [the student]’s residence would be with [petitioner] at [the in-district address].”
In early September 2016, a question arose as to the student’s residency which prompted respondent’s superintendent to commence a residency investigation, including surveillance. By letter dated September 20, 2016, respondent’s superintendent notified petitioner and his wife that the district believed that the student was not a resident of the district and that an administrative review was scheduled for September 23, 2016, to provide petitioner with an opportunity to submit information establishing residency within respondent’s district. According to respondent, during the September 23, 2016 administrative review, the superintendent met with petitioner and explained the residency requirements and, according to respondent’s superintendent, petitioner “explained that the [s]tudent’s grandfather had a stroke but was now doing better with his recovery and that [p]etitioner would be moving the [s]tudent and one of the [s]students’ brothers back to the [in-district] residence....” According to an affidavit from the superintendent, he informed petitioner that the district would continue its residency investigation, and requested that the investigator continue surveillance.
By letter dated November 30, 2016, respondent’s superintendent again notified petitioner and his wife that the student was not a district resident, that an administrative review was scheduled, and that petitioner had the opportunity to submit any additional information establishing the student’s residency within the district. On December 16, 2016, the superintendent met with petitioner and his wife separately and gave each an opportunity to submit additional information regarding the student’s residency. Petitioner explained that he and his wife are separated and the student stays with petitioner at the in-district address, and also with his wife at the out-of-district address. Petitioner stated that the student resides primarily with him in the district. Petitioner stated that he owns both the in-district and out-of-district homes and pays taxes in the district and claims that the student is therefore entitled to attend the district’s schools. According to the superintendent, he explained to petitioner and his wife the investigation and surveillance. Specifically, he described four occasions on which the student was observed going from school to the out-of-district address and four occasions where the student was observed going to school from the out-of-district address. Neither petitioner nor petitioner’s wife submitted any additional documents.
By letter dated January 10, 2017, the superintendent notified petitioner and his wife of his determination that the student is not a district resident and therefore not entitled to attend the district’s schools tuition-free. The letter explained that the district had conducted surveillance and described 13 occasions between September 8, 2016 and December 23, 2016 when the student was observed leaving or going to the out-of-district address or not observed at the in-district address. This appeal ensued. Petitioner’s request for interim relief was granted on February 13, 2017.
Petitioner asserts that respondent failed to provide petitioner with a hearing prior to rendering its determination and violated the Education Law and respondent’s own residency policy. Petitioner seeks a determination that the student is a resident of respondent’s district and is entitled to attend its schools tuition-free.
Respondent contends that petitioner failed to meet his burden of demonstrating a clear legal right to the relief requested and maintains that its determination was neither arbitrary nor capricious.
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).
The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773). While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).
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).
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).
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, the student stays with both parents, but his primary residence is with petitioner at the in-district address. Petitioner asserts that “[t]here is no argument that my son does reside a few days a week at another location because that is where his mother resides.” Additionally, petitioner explains that the student often has dinner with his mother mid-week at the out-of-district address but returns to the in-district address to “go to sleep.” Together with his petition, petitioner submits the deed to the in-district address, indicating that petitioner owns the property, as well as various invoices and correspondence addressed to the in-district address, indicating that he receives mail at that address, and an affidavit from petitioner’s wife in support of the petition, stating that the student resides with her at the out-of-district address “a few days a week.”
As noted above, 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. It is not sufficient to simply assert that the student’s time is divided between two households; there must be proof that the student is in fact dividing his or her time between his or her parents (see Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Williams, 42 id. 8, Decision No. 14,756; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171). On this record, I find that petitioner has failed to provide sufficient evidence to rebut respondent’s surveillance evidence and establish that his son is actually dividing his time between his father at the in-district address and his mother at the out-of-district address.
The record indicates that respondent initially had concerns regarding the student’s residency in September 2016, resulting in an administrative review. According to respondent, at the September 23, 2016 administrative review, petitioner explained that the student’s grandfather had a stroke but was doing better with his recovery and that petitioner would be moving the student and one of the student’s brothers back to the in-district residence. However, the petition herein does not reference the grandfather’s illness or otherwise address any family living situation that would explain respondent’s surveillance evidence from September 2016.
Rather, as to the surveillance conducted on September 8, 9, 13 and 16, 2016, indicating that petitioner picked the student up from school and brought him to the out-of-district address, petitioner merely states, “that is just plain false. I don’t live there and did not come from there to pick up my son from school.” As to the September 13 and 16, 2016 surveillance indicating that the student was driven from the Queens address to school and the car returned to Queens, petitioner states that this “is also false” because “I take [the student] from [the New Hyde Park address].” However, petitioner did not explain how or why he was driving the student from the New Hyde Park address to the Queens address during the same time frame he had previously indicated to respondent that he was in the process of moving the student back to the New Hyde Park address. Petitioner did not submit a reply to respondent’s verified answer, memorandum of law, or any evidence to refute respondent’s contentions or address his internally inconsistent statements.
The record indicates that surveillance was conducted on multiple occasions between September 8, 2016 and December 23, 2016. Specifically, the student was observed going from the out-of-district address to school or from school to the out-of-district address on six occasions over four days (afternoons of September 8, 9, 13, and 16; and mornings of September 13 and 16). The student was not observed entering or exiting the in-district address on the morning of October 20 or on the mornings and afternoons of December 20, 21, 22 and 23. Further, the surveillance indicated that petitioner was observed leaving the out-of-district address on one morning (December 16) and traveling to the Manor Oaks School without the student.
Petitioner also alleges that respondent did not provide evidence of surveillance between September 20 and December 19, 2016 because the district is “hiding information detrimental to their decision.” Specifically, the petition asserts that: “[b]etween September 20th and December 19th, my work schedule did not allow me to pick up [the student] from school most days.... For those three months, [the student] walked the half-mile from school to my home [the in-district address]....” Respondent admits that the student’s mother and petitioner submitted letters to allow the student to walk home from school on various dates during this time period, but otherwise denies petitioner’s allegations. Petitioner has provided no proof to substantiate his claim that respondent has deliberately hidden information or failed to conduct further surveillance because it would support petitioner’s claim of residency.
While respondent’s surveillance evidence is not overwhelming, petitioner does not provide an adequate explanation of why his son was consistently observed at the out-of-district address, and not at the in-district address, other than conclusory denials in his petition and conclusory allegations in the affidavit of the student’s mother. Accordingly, petitioner has failed to meet his burden of establishing that the student resides in the district.
Petitioner also asserts that respondent failed to provide petitioner with a hearing prior to rendering its determination. Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools. This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district. It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430). The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430). Therefore, I find petitioner’s allegations that respondent improperly failed to provide a formal hearing to be without merit.
In any event, by letters dated September 20, 2016 and November 30, 2016, respondent notified petitioner that the student’s residency was in question and respondent provided petitioner and his wife with opportunities to submit information concerning the child’s right to attend school in the district. The record also indicates that petitioner and his wife had two meetings with the superintendent – one on September 23, 2016 and one on December 16, 2016. Although petitioner and his wife indicate that they were not aware of the purpose of the December 16, 2016 meeting, the record indicates that they were aware of the district’s ongoing investigation resulting from the September 2016 meeting and that the superintendent gave them the chance to submit additional information at both meetings. Moreover, the letter was addressed to petitioner and his wife at the out-of-district address, at which the parties do not dispute petitioner’s wife resides.
Further, respondent’s January 10, 2017 correspondence to petitioner contained its final written determination and the basis therefor, including a detailed description of respondent’s surveillance, as well as information regarding petitioners' right to appeal to the Commissioner pursuant to Education Law §310. Although petitioner complains that respondent conducted additional surveillance following the December 16, 2016 administrative review, he had a full opportunity to respond to such surveillance in the instant appeal. Therefore, to the extent petitioner asserts that respondent violated 8 NYCRR §100.2(y), I find such allegations to be without merit.
Based on this record, petitioner has failed to meet his burden of proving that he resides in the district or that respondent violated 8 NYCRR §100.2(y). Accordingly, I cannot conclude that respondent’s determination was arbitrary or capricious.
Although the petition must be dismissed, I note that petitioner has the right to reapply to the district for his son’s admission, if circumstances change, and to present any new information for the district’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The record is unclear regarding the events leading up to September 2016.
 Petitioner asserts that he first learned about this meeting when the superintendent’s secretary called to re-schedule a meeting that had been scheduled for December 12, 2016. According to petitioner, neither he nor his wife knew that any meeting had been scheduled and both believed it was a meeting for a different purpose. However, petitioner attaches the November 30, 2016 letter to his petition and neither he nor his wife assert that they did not receive such letter, which was apparently mailed to them at the out-of-district address.
 I note that the parties do not dispute that the student was absent from school from December 20-22, 2016. Petitioner explains that the student became sick on December 19, 2016, and therefore, he went to stay with his mother. Petitioner is correct that respondent’s admission that the student was absent on those dates partially contradicts respondent’s surveillance report for December 20 and explains why the student was not observed at the in-district address on December 20-22. In addition, petitioner has alleged that the student often has dinner with his mother and that on December 19 the student stayed with his mother because he was sick. Accordingly, the student’s illness adequately explains respondent’s surveillance evidence for December 19 and 22, and I have disregarded such evidence.
 I take administrative notice of Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,153, in which petitioner testified at an October 24, 2016 residency review that all of his children’s belongings were located at the out-of-district address. Specifically, he testified that “I only got a Play Station and TV for them in the house [at the in-district address]. That’s all I have .... And a bed.” Further, the record in that appeal indicates that a home visit of the in-district address conducted by the Sewanhaka Central High School District in October 2016 confirmed the same (see Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,153).