Decision No. 18,193
Appeal of J.R., on behalf of his children, from action of the Board of Education of the Akron Central School District regarding residency.
Decision No. 18,193
(August 29, 2022)
Legal Aid Bureau of Buffalo, Inc., attorneys for petitioner, Carolyn Hite, Esq., of counsel
Hodgson Russ, LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Akron Central School District (“respondent”) that his children (the “students”) are not district residents. The appeal must be sustained.
Petitioner, a district resident, is the father of several children who attended respondent’s schools as district residents prior to the events described herein. The record reflects that petitioner and the students’ mother were in the process of separating at the time of the events giving rise to this appeal.
According to respondent’s director of educational services (the “director”), at some point after the start of the 2021-2022 school year, the district suspected that the students no longer resided with petitioner at their home in the district (the “in-district address”). The district suspected that the students lived with their mother at a residence outside the district’s boundaries (the “out-of-district address”).
Respondent engaged an investigative firm (the “investigator”), which surveilled the out-of-district address on November 22, 23, and December 1 and 9, 2021. On three of these days (November 22, 23 and December 1), a vehicle registered to the students’ mother departed the out-of-district address shortly after 7:00 a.m. and proceeded to drop off children at three different locations in and around the schools they attend. On December 9, the investigator observed the students’ mother leave the out-of-district address but did not observe any students being dropped off at school.
By letter dated December 10, 2021, the director informed petitioner and the students’ mother of her preliminary determination that they may not be district residents. The director asked them to submit proof of residency by December 23, 2021.
On December 23, 2021, petitioner submitted the following documentation bearing the in-district address: a bank statement in petitioner’s name; a utility bill from the village of Akron in petitioner’s name; a school tax bill in both petitioner and the mother’s name; and copies of petitioner’s and the mother’s driver’s licenses.
In a letter dated January 7, 2022, the director informed petitioner and the mother of her decision that the students were not district residents and would, therefore, be excluded from the district as of January 21, 2022.
In an email to the director dated January 28, 2022, counsel for petitioner asked the district to re-enroll the students; the email included affidavits from petitioner and the mother regarding the terms of a separation and parenting agreement (“agreement”) to which they agreed on December 13, 2021. In the affidavits, petitioner and the students’ mother averred that the agreement provided petitioner with primary residential custody of the students. The agreement also explained the students’ living arrangement, which, as further described below, was essentially divided between petitioner and the mother.
In a reply sent later that day, the director acknowledged receipt of the affidavits and informed petitioner’s attorney that she would forward them to counsel for the district. This appeal ensued. Petitioner’s request for interim relief was granted on February 9, 2022.
Petitioner contends, among other arguments, that he resides within respondent’s district and that the students live with him pursuant to the schedule outlined in the agreement. Petitioner seeks a determination that the students are residents of respondent’s district entitled to attend its schools without payment of tuition.
Respondent asserts that it complied with the law in rendering its decision; that petitioner failed to establish the students reside in the district; and that its decision was neither arbitrary nor capricious.
I must first address several procedural matters. By letter dated April 8, 2022, respondent sought permission to submit additional surveillance reports and an affidavit from the surveillance firm’s president. Respondent asserts that these documents “are necessary to show that [p]etitioner’s children are not district residents” and because they show that petitioner and the students’ mother “are not adhering to the [agreement]….” Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5). While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses 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). Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Respondent’s submissions are relevant to the question of petitioner’s adherence to the agreement, which governs the students’ living arrangements (see generally Appeal of G.D. and D.D., 59 Ed Dept Rep, Decision No. 17,797, [observing that “[s]tatuses such as residency and homelessness … may be fluid in nature”] appeal dismissed Matter of Dukes v Cold Springs Harbor Cent. School Dist. Bd. of Educ. [Sup Ct, Albany County June 8, 2020, Walsh, J.]). Therefore, I have accepted the additional surveillance and considered it in reaching my determination.
Petitioner also seeks permission to submit a supplemental memorandum of law, an affidavit from petitioner describing the updated terms of his custody agreement and related exhibits, and a letter from petitioner’s divorce mediator. I have accepted these documents into the record because, like the additional surveillance, they are relevant to the question of petitioner’s adherence to the agreement (see Appeal of Zayas, 53 Ed Dep Rep, Decision No. 16,546). However, with respect to the memorandum of law, I have only accepted those portions containing new assertions that are not responsive to new material or affirmative defenses set forth in the answer. A memorandum of law should only consist of arguments of law and may not be used to add belated assertions or exhibits not included in the pleadings (8 NYCRR 276.4; see Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).
Turning to 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).
I find that petitioner met his burden to prove that the students are district residents. It is undisputed: (1) that petitioner lives in the district; and (2) that, per the agreement, the students’ time is essentially divided between the parents’ respective households. According to the agreement, the five students who are the subject of this appeal stay with their mother for the following number of nights per week:
- Student one: two nights
- Student two: five nights
- Students three and four: four nights
- Student five: three nights.
The students reside with petitioner on the remaining nights. Under these circumstances, the students’ time is essentially divided between petitioner and the mother. As such, petitioner and the mother may designate petitioner’s residence as the students’ residence for school purposes.
Respondent’s surveillance is insufficient to rebut petitioner’s evidence. Initially, the surveillance in November and December 2021 is entitled to limited probative value as it occurred amidst petitioner and the mother’s separation. It is reasonable to assume that one or more of the students did not observe their typical living arrangements during this period. But even assuming that they did, this surveillance was limited and inconclusive. The November 22 and 23 surveillance reports do not identify any children by name or description, merely including photographs of children taken from afar. Similarly, the December 1 surveillance report fails to identify any children by name, providing only vague descriptions thereof. The December 9 surveillance report is even less illuminating; it states that “[i]t is unknown how many occupants [were] in the vehicle.” On that day, the investigator followed the vehicle but did not observe any children getting dropped off at or around any of respondent’s schools. None of the reports identify or describe the driver of the vehicle, stating only that the vehicle was registered to the students’ mother.
The second round of surveillance conducted at the out-of-district address is similarly unpersuasive. On March 16, 17, 21, and 24, 2022, an investigator arrived between 5:33 and 5:43 a.m. and observed the students’ mother depart the premises. The reports further state that, on March 16 and 17, there were “several other occupants in the vehicle that appear[ed] to be children” and that, on March 21 and 24, “[i]t appeared that there [were] children in the vehicle.” The March 16 and 17 reports further indicate that, after departing, “the vehicle proceed[ed] toward Akron.” Reports from March 21 and 24 merely indicate that the vehicle departed from the out-of-district address. In an affidavit, the president of the investigative firm asserts that “[i]nvestigators found no evidence that the children were dropped off at [the students’ mother’s home] between 6:00-7:00 a.m. on any given day that [the firm] conducted surveillance.” The statement that there “appeared” to be children in the car does not establish the students’ physical presence therein. Further, the investigator did not follow the vehicle registered to the mother or observe any students being dropped off at or around respondent’s schools. Finally, and most significantly, the firm did not conduct any surveillance at the in-district address. Thus, the fact that “investigators never saw Petitioner with the Students, or the Students at the Akron Residence” may have been by design.
While the evidence is close, I find that petitioner has sufficiently demonstrated that the students’ time is essentially divided between their parents’ homes. Respondent’s surveillance was of limited duration, did not include observations of both residences, and failed to rebut petitioner’s explanation of his family’s unique circumstances (see Appeal of Students with Disabilities, 58 Ed Dept Rep, Decision No. 17,467 [district’s four days of surveillance found to be “limited and inconclusive” under the circumstances]; Appeal of A.N., 57 id., Decision No. 17,132 [district’s limited surveillance “not tailored to rebut petitioner’s explanation of her unique employment circumstances”]). Nothing in this decision limits respondent’s authority to establish a more complete picture of the student’s physical presence through additional surveillance. Until that time, however, respondent must admit the students to its schools.
I have considered the parties’ remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent shall admit the students to the schools of the district without the payment of tuition.
END OF FILE
 Petitioner brings this appeal on behalf of five of his children who attended respondent’s schools. A sixth child attends a charter school.
 According to the surveillance report, four children were dropped off on November 22 while five children were dropped off on November 23 and December 1.
 In the affidavit, dated April 20, 2022, petitioner avers that he and the students’ mother informally adjusted the agreement to accommodate petitioner’s new employment situation, but the students’ time remains “essentially divided” between the parents. The letter from the divorce mediator, dated April 21, 2022, states that petitioner and the students’ mother are nearing a final agreement, “including a comprehensive shared parenting plan adjusted to meet [petitioner’s] new employment schedule.”
 While one photograph depicted a child’s face, the image is out of focus.
 The record shows that two of the students were absent from school on this day.