Appeal of SANJAY MANIKARNIKA, on behalf of his son PARTHA, from action of the Board of Education of the Hicksville Union Free School District regarding residency and transportation.

Decision No. 17,899

(August 5, 2020)

Guercio & Guercio, LLP, attorneys for respondent, Matthew A. Galante, Esq., of counsel.

Tahoe., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Hicksville Union Free School District (“respondent”) that his son Partha (“the student”) is not a district resident and is not entitled to transportation to another school district.  The appeal must be dismissed.

Prior to the events described in this appeal, petitioner and the student’s mother were married and lived at an address within the geographical boundaries of respondent’s district (the “in-district address”), where petitioner still resides.  In or about December 2014, petitioner and the student’s mother divorced, and the student’s mother moved to an address located outside of respondent’s district.  Pursuant to a custody agreement, petitioner and the student’s mother agreed to share joint legal and physical custody of the student.  The custody agreement also indicated that the parents agreed to enroll the student in a specific nonpublic school located within the boundaries of respondent’s district.  The student attended this nonpublic school for several years prior to the events described in this appeal.

Sometime prior to the beginning of the 2019-2020 school year, the student’s mother relocated to an address located within the Jericho Union Free School District (the “Jericho address”).  Petitioner and the student’s mother thereafter agreed to enroll the student at an elementary school within the Jericho Union Free School District.

In an email dated August 22, 2019, petitioner requested that respondent provide transportation for the student from his home to the elementary school.  By letter dated August 28, 2019, respondent informed petitioner that it had received information indicating that the student was not a district resident.  Respondent thereafter convened a formal residency hearing on September 4, 2019. Petitioner appeared and participated in the hearing.

By letter dated September 4, 2019, respondent informed petitioner that it had determined the student was not a district resident because the student did not live full-time with petitioner at the in-district address, and because the student was enrolled in the Jericho Union Free School District, where his mother resided.  This appeal ensued.

Petitioner contends that the student has two legal residences and that respondent is obligated to provide transportation from petitioner’s residence to the student’s elementary school located within the Jericho Union Free School District.  Petitioner further asserts that respondent previously provided transportation to and from the in-district address to the student’s former nonpublic school.  Petitioner seeks a determination that the student is a resident of respondent’s district and, consequently, entitled to transportation between the in-district address and his school.

Respondent argues that this appeal is “frivolous, spurious, and vexatious”; that petitioner has failed to state a claim upon which relief can be granted; that it has no legal obligation to transport the student to another school district, and indeed, lacks statutory authority to do so; and that its actions were neither arbitrary nor capricious.

I must first address a procedural matter.  Respondent’s memorandum of law is untimely. Pursuant to section 276.4 of the Commissioner’s regulations, respondent was required to serve its memorandum of law within 30 days after service of the answer, or 20 days after service of the reply, whichever was later.  Respondent’s answer was served by mail on October 22, 2019 and petitioner did not submit a reply. Respondent’s thirtieth day thus fell on Thursday, November 21, 2019. Respondent did not serve its memorandum of law until Friday, November 22, 2019. Respondent did not submit a written application pursuant to 8 NYCRR §276.4(a) setting forth good cause for the delay or explain why such memorandum is necessary to resolve the issues in this appeal.  Therefore, I have not considered respondent’s memorandum of law.

Turning to the merits, 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 S.L., 57 Ed Dept Rep, Decision No. 17,187).  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 S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of T.P., 45 id. 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935).  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 S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Here, the record shows that petitioner and the student’s mother share joint custody of the student; that the student’s time is essentially divided between the in-district address and the student’s mother’s residence; and that petitioner and the student’s mother designated the Jericho Union Free School District as the student’s district of residence, as was their right.  Indeed, at the residency hearing, petitioner stated that the student “has been admitted to [the] Jericho School District, which is mutually agreeable to both of us [i.e., petitioner and the student’s mother] as parents.”

Petitioner nevertheless argues that the student is entitled to transportation from respondent’s district because he has two legal residences.  The Commissioner rejected this argument in Appeal of Squillace (57 Ed Dept Rep, Decision No. 17,385), finding that such a proposition “would result in [a] student having two or zero legal residences.”  The Commissioner reasoned that this was inconsistent with the “well-settled [rule] that a child may have only one legal residence, including when his or her parents live apart” (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; see also Appeal of Squillace, 57 id., Decision No. 17,389).  Because petitioner and the student’s mother have designated the Jericho Union Free School District as the student’s district of residence, respondent reasonably denied the student admission to its schools.  Respondent also reasonably denied petitioner’s request for transportation, as a school district is only obligated to provide transportation to district residents (Education Law §3635[1][a]).

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

THE APPEAL IS DISMISSED.

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