Decision No. 18,136
Appeal of WILLIAM GENS, on behalf of his children, from action of the Board of Education of the Great Neck Union Free School District regarding residency.
Decision No. 18,136
Ingerman Smith, L.L.P., attorneys for respondent, Steven A. Goodstadt Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that his children (“the students”) are not district residents and, therefore, are not entitled to attend its schools without payment of tuition. The appeal must be dismissed.
Petitioner is the students’ father and resides in respondent’s district. Petitioner and the students’ mother, who resides outside of the district (the “out-of-district address”), divorced in 2021. Pursuant to a settlement agreement, the parents share joint legal custody of the students and the mother has sole residential custody. Petitioner has parenting time with the students every other Friday through Sunday and on Tuesdays and Thursdays from approximately 2:30 to 6:30 p.m. The agreement also states that “pursuant to Education Law 3202 the parties designate Great Neck as the children’s residence for the purpose of school enrollment.”
In October 2021, respondent suspected that the students were exclusively living with their mother at the out-of-district address and began a residency investigation. On five out of the six school days of surveillance, petitioner picked up the students at the out-of-district address in the morning and dropped them off at school. On the sixth day, the students’ mother picked them up at the end of the school day and drove them to an afterschool activity. Based on this information, respondent sent petitioner a letter stating that it would exclude the students as non-residents as of November 30, 2021.
Petitioner appealed the decision to respondent, arguing that the settlement agreement dictated the students’ school district of attendance. Respondent denied the appeal and excluded the students from school in December 2021. The students were thereafter enrolled in the school district where the mother resides. This appeal ensued. Petitioner’s request for interim relief was denied on January 25, 2022.
Petitioner argues that the students’ time is “essentially divided” between the in-district and out-of-district addresses. He seeks a determination that the students are district residents entitled to attend respondent’s schools tuition free.
Respondent asserts, among other arguments, that its decision to exclude the students as non-residents was neither arbitrary nor capricious.
This appeal must be dismissed for failure to join a necessary party. A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). Joinder requires that a party be clearly named in the caption of the appeal and served with a copy of the notice of petition and petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).
For relief, petitioner seeks a determination that the students are entitled to attend respondent’s schools. The students currently attend school in the district where their mother resides. Were petitioner to prevail, the rights of the mother may be adversely affected. Therefore, she is a necessary party and petitioner’s failure to join her warrants dismissal of the appeal (Appeal of R.G., 54 Ed Dept Rep, Decision No. 16,682; Appeal of P.T., 49 id. 457, Decision No. 16,080; Appeal of Pyskadlo, 47 id., Decision No. 15,624).
Even if the appeal were not dismissed for failure to join the students’ mother as a necessary party, it would be dismissed on the merits. Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 ). “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 ; 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 (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Helms, 36 id. 95, Decision No. 13,668). In cases where parents have joint custody and the child’s time is essentially divided between the parents’ respective households, the parents may designate the child’s residence for purposes of Education Law § 3202 (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; Appeal of Cortes, 37 id. 114, Decision No. 13,818). However, in the absence of proof that the child’s time is indeed divided between both households, the child’s residency must be determined by the traditional test requiring physical presence in the district and intent to remain (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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
In his initial challenge to respondent’s residency determination, petitioner cited his separation agreement as dispositive of the students’ residence. Such agreement grants the mother “sole residential custody” and provides petitioner with access to the children: (1) every other Friday through Sunday; and (2) Tuesdays and Thursdays from approximately 2:30 – 6:30 p.m. This represents approximately 25 percent of the students’ time and 4 percent of their school week. Thus, the students’ time is not “essentially divided” between petitioner’s and the students’ mother’s residences (compare Appeal of Prescod and Cumberbatch, 60 Ed Dept Rep, Decision No. 17,924 [time essentially divided whether father had children for three school days and mother had children for two school days]; Appeal of Cortes, 37 id. 114, Decision No. 13,818 [children’s time essentially divided where “each parent ha[d] the children for two school days one week and three school days the next”]). This precludes petitioner and the students’ mother from designating respondent’s district as the district of attendance.
Petitioner now claims on appeal that his children “intend to reside” at the in-district address 51 percent of the time. In support of this argument, petitioner submits a “parenting time report” denoting which nights the children will spend in his care from January 1 to December 31, 2022. This report postdates the students’ exclusion from respondent’s district, is prospective in nature, and contradicts the separation agreement. For example, the separation agreement grants the father time with the children every Tuesday and Thursday after school until 6:30 p.m., at which time he is directed to drop them off to the out-of-district address. Yet, according to the parenting time report, the students plan to sleep at the in-district address on Tuesday and Wednesday, March 9 and 10. The report is also inconsistent with the district’s surveillance evidence, which consistently depicted the students leaving for school from the out-of-district address.
Based on the evidence in the record, I cannot find that respondent’s determination was arbitrary or capricious. Petitioner retains the right to reapply for admission on behalf of the students at any time, should circumstances change; for example, a modification of the terms of the separation agreement.
THE APPEAL IS DISMISSED.
END OF FILE
 The separation agreement also addresses physical custody during holidays and school breaks, which is generally divided equally (e.g., Thanksgiving access to the mother in odd years and father in even years).
 In a four-week period, the students would spend two Friday-Sunday weekends (6 days) and eight 4-hour Tuesday/Thursday (4 x 8 = 32, or 1.3 days) visits with petitioner. 7.3 days divided by 28 is 26 percent.
 The prior decisions of the Commissioner cited by petitioner are inapposite. In these appeals, the students’ physical presence within the district was undisputed (Appeal of Petrie, 37 Ed Dept Rep 200, Decision No. 13,842), essentially divided (Appeal of Cortes, 37 id. 114, Decision No. 13,818; or otherwise demonstrated by the evidence in the record (Appeal of Barron, 31 id. 1, Decision No. 12,545).