Appeal of KENYA PRESCOD and PETER CUMBERBATCH, on behalf of their daughter GISELLE CUMBERBATCH, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 17,924

(September 15, 2020)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

Rosa., Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that their daughter, Giselle Cumberbatch (“the student”), is not a district resident.  The appeal must be sustained.

On or about August 6, 2019, petitioner Prescod (“the mother”) submitted a registration packet to enroll the student in kindergarten in respondent’s district based on the representation that the student lived with petitioner Cumberbatch (“the father”) at an address located within respondent’s district (“the in-district address”) owned by the father’s aunt.  The mother resides outside of respondent’s district, in the Bronx, New York.  According to respondent, concerns arose about the student’s residency after respondent reviewed the materials submitted in the registration packet.  Among other things, the materials indicated that the student stayed with the mother for four days a week and stayed with the father for three days a week.

According to respondent, an attendance teacher employed by respondent attempted to visit the in-district address to verify the student’s residency on August 14, 2019 at about 1:00 p.m. and August 29, 2019 at about 10:00 a.m., but no one was available.  The attendance teacher claims that she left a card with her contact information on both occasions; petitioners deny this allegation.  The attendance teacher recommended that respondent exclude the student as a nonresident because she was unable to verify the father’s residence and, in any event, the mother admitted that the student resided with her outside of the district four days a week.

In a letter dated August 30, 2019, respondent notified the father of its determination that the student did not reside within its school district and was therefore ineligible to attend respondent’s schools.

On September 3, 2019, the attendance teacher attempted another home visit at about 7:25 a.m.  According to respondent, the father was present, but the student was not.  The father led the attendance teacher to a room in the attic and indicated that he shared the room with the student.  The attendance teacher states on appeal that she believed the room had been staged for a home visit.  After this visit, the father told the attendance teacher that he was going to a particular train station to pick up the student.  According to the attendance teacher, she went to the train station and stayed for about 15 minutes, but the father never showed up.

By letter dated September 4, 2019, respondent notified the father that, based on respondent’s investigation, it had concluded that he was not living at the in-district address and that a custody agreement[1] presented by him stated that the child lives with the mother four days a week.  Accordingly, respondent determined that the student was not eligible to attend the district’s schools.

Meanwhile, in an email exchange that took place on September 3, 2019, the mother indicated that the home visit was “complete” and asked respondent’s director of pupil services “what ... the next steps” were.  The director of pupil services responded, “[t]he father can go to the school to complete the registration process now that his residence has been cleared.”  Petitioner responded, asking whether the father needed to bring any paperwork.  The director of pupil services answered that she was waiting to receive the report from the visit and would provide further guidance once she received it.

According to the record, on or about October 22, 2019, respondent discovered that the student had been registered in the district.  By letter dated October 28, 2019, the director of pupil services notified the father that respondent had determined that the student did not reside within its school district and the student would be excluded as of November 13, 2019.  This appeal ensued.  Petitioners’ request for interim relief was granted on November 18, 2019.

Petitioners argue that the student lives with the father at the in-district address during the majority of weekdays Petitioners seek a determination that the student is a district resident entitled to attend respondent’s school tuition-free.

Respondent argues that petitioners have failed to prove that the father permanently resides at the in-district address.  Respondent further argues that, in any event, petitioners admit that the student resides with the mother the majority of the time.

First, I must address several procedural matters.  Petitioners submitted a reply in this matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Moreover, respondent’s memorandum of law contains new evidence and assertions.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Therefore, I have not considered respondent’s references to additional surveillance in its memorandum of law or the additional document served by petitioners on February 14, 2020.

Finally, petitioners submitted a document containing further contentions and defenses following service of respondent’s memorandum of law.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Petitioners did not seek permission to submit additional evidence.  Therefore, I decline to consider this submission.

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).

In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, I find that petitioners have met their burden of proving that the father lives at the in-district address and that the child’s time is “essentially divided” between the in-district address and the mother’s residence.  Initially, the record supports a finding that the father resides at the in-district address.  The registration packet submitted to respondent included, among other things, a letter from the mother dated July 20, 2019; a form entitled “Statement of Host to Establish Residence of Students”; a lease for the in-district address; and an affidavit from an adult who lives at the in-district address.  Petitioners submit yet more documentary evidence in support of the student’s residency with the petition; namely, a copy of the father’s New York State driver’s license and phone bills from February 2019 to October 2019.

In the mother’s July 20, 2019 letter, the student’s mother explained:

[the student] stays with me (Kenya Prescod – her mom in the Bronx, NY) on Friday, Saturday, Sunday, and Monday.  She stays with her father (Peter Cumberbatch in New Rochelle, NY) on Tuesday, Wednesday, and Thursdays.

In support of the petition, petitioners also submitted schedules to explain the manner in which they share custodial time.  The mother submitted a college course list showing that she is enrolled in evening courses at a community college during the fall 2019 term.  The father submitted a work schedule showing that he works from 7:00 a.m. to 3:00 p.m. Thursday through Monday and is off on Tuesdays and Wednesdays.

The form entitled “Statement of Host to Establish Residence of Students” was completed by the father’s aunt and indicates that the father and the student live at the in-district address.  According to the aunt, the father had a two-year lease and had lived at her home for 20 years.  The lease between the father and his aunt for the in-district address covers the period between July 15, 2018 to July 12, 2020.  Along with the form, the aunt submitted an electricity bill for the third floor of the in-district address, an annual escrow account summary, a heating oil invoice, and a water bill.  Additionally, an affidavit from another adult living at the in-district address indicates that the student lived at the in-district address and that the mother and the father lived with the student.

In support of its determination, respondent relies on the limited evidence from the attendance teacher’s home visits, alleged inconsistencies in petitioners’ proof, and the fact that the district has had residency issues connected to the in-district address in the past.  None of this evidence, however, suggests that the father does not live at the in-district address.  Indeed, the attendance teacher encountered the father during the September 3, 2019 home visit.  Therefore, I find that petitioners have met their burden of proving that the father lives at the in-district address.

The only remaining question is whether the student resides at the in-district address with the father.  The attendance teacher concluded that the student did not live at the in-district address based on her observation of the father’s bedroom that he allegedly shared with the student; the attendance teacher indicates that she observed only a few items belonging to the student in the bedroom.

In a reply, petitioners contest the accuracy of the attendance teacher’s affidavit.  They explain that the father’s apartment consists of more than one room and that the student has only five outfits in the closet because she only spends the weekdays at the father’s residence.  Petitioners also assert that the father was home and available during the first two times the attendance teacher attempted a visit and that no card was left in the door.

The Commissioner will not substitute her judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see e.g. Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687; Appeal of K.M. and T.M., 56 id., Decision No. 17,095).  Here, however, respondent’s determination concerning the “staged” nature of the in-district address was not a credibility determination, but, rather, was based upon conclusions drawn from visual evidence, which the Commissioner is just as well situated to evaluate.  Respondent has not produced photographs of the student’s alleged bedroom on appeal.  Based on the record before me, I do not credit the attendance teacher’s explanation that the bedroom was facially inadequate for a child or had been “staged.”  If respondent believed that the student did not reside at the in-district address, it could have confirmed this by conducting surveillance.[2]

Respondent’s argument that petitioner’s proof should be discredited because one affidavit mistakenly stated that the mother also lived at the in-district address is not convincing.  The affidavit merely indicates that the student lives with two different adults – the mother and the father – which is not inconsistent with the facts asserted by petitioners.

I am also unpersuaded by respondent’s argument that the student is not a district resident because she spends the majority of her time with the mother, who resides outside of the district.  Petitioners claim that they share joint custody and have submitted evidence that the student’s time is “essentially divided” between their households.  Petitioners submitted schedules supporting their explanations that the student resides with the mother on weekends and the father for three weekdays.  The schedules show that the mother takes classes on weekday evenings and that the father is off from work on Tuesdays and Wednesdays.  It is uncontested that the student spends Friday, Saturday, Sunday, and Monday with the mother and spends the other three days of the week with the father.  While this is not literally 50 percent or more of the week, the relevant test is essentially divided, not exactly divided (Appeal of Forde, 29 Ed Dept Rep 359, Decision No. 12,319; see also Appeal of Cortes, 37 id. 114, Decision No. 13,818 [“Nothing in Forde requires that the child’s time be divided exactly equally between the parents”] [emphasis in original]).[3]  Thus, I find that the student’s time is “essentially divided” between both parents, and the decision regarding residency rests with the family.  Respondent has not presented any evidence to undermine petitioners’ claim of joint custody or that the petitioners’ custodial time is not essentially divided.

I also do not find the fact that seven students currently attend respondent’s schools using the in-district address to be dispositive.  According to the record, the in-district address is a multiple family dwelling and there is no evidence connecting petitioners to any of the past residency issues that have arisen from the in-district address.  While I agree with respondent that this is suspicious and could warrant investigation, generalized suspicion concerning an individual’s residency cannot serve as a basis for an adverse residency determination (Appeal of Crawford, 59 Ed Dept Rep, Decision No. 17,785; Appeal of the Board of Education of the East Ramapo Central School District, 58 id., Decision No. 17,456).[4]

Finally, respondent objects to the circumstances under which petitioners achieved the student’s admission to the district.  Respondent alleges that petitioners presented inaccurate statements to district employees and improperly contacted the student’s elementary school to gain admission to the district’s schools.  While not entirely clear, it appears that petitioners achieved the student’s admission by contacting the student’s home-zoned elementary school directly.  While the record reflects confusion concerning the student’s admission, it does not contain, as respondent alleges, evidence of any bad faith conduct by petitioners.[5]  Therefore, I decline to apply any adverse inference against petitioners based upon the circumstances of the student’s enrollment.

On this record, I find that respondent’s evidence is not dispositive in light of petitioners’ explanations and documentary evidence.  While I acknowledge respondent’s credibility concerns, respondent is free to conduct a further investigation into petitioners’ residency and render a determination with respect thereto, consistent with the procedures and protections outlined in 8 NYCRR §100.2(y).  In this respect, respondent may rely upon any evidence it has obtained, including surveillance evidence.  Nevertheless, I find that, on this record, petitioners have met their burden of proof (see e.g. Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of a Student with a Disability, 57 id., Decision No. 17,199).

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the student to the schools of the district without the payment of tuition.

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