Decision No. 13,099

(February 10, 1994)

SOBOL, Commissioner.--Petitioner appeals on behalf of his sons, Brett and Seth, from respondent's determination that they are not residents of the Williamsville Central School District. The appeal must be sustained in part.

Petitioner resides in the Clarence Central School District. He is divorced from his sons' mother, who resides in respondent's district. Pursuant to a 1985 judgment of divorce, the mother was awarded custody of the children and petitioner was awarded visitation. In September 1992, petitioner became involved in custodial litigation with his former wife. Petitioner alleges that, as part of this litigation, the Supreme Court, Erie County, granted a temporary order, subject to a hearing, which awarded him temporary custody of the children. Subsequently, petitioner's sons began living with petitioner in the Clarence Central School District.

By letter dated December 21, 1993, respondent's assistant superintendent notified petitioner that since he had custody of his sons, and they resided with him in Clarence, they were no longer eligible to attend the district's schools. In response, petitioner advised the assistant superintendent that he intended to keep his sons in the district's schools. Petitioner also advised the assistant superintendent that he had placed his house in Clarence for sale and leased an apartment in respondent's district. Subsequently, the law guardian appointed in the custody dispute, advised the district that the children had not resided in the district since September 1992. By letter dated March 29, 1993, respondent's attorney notified petitioner of the law guardian's conversation with the district and advised petitioner to register the children in his district and to arrange for the payment of tuition due respondent. In reply, petitioner argued that he could not legally withdraw the children from school. Finally, by letter dated April 30, 1993, the assistant superintendent notified petitioner of her final determination that his sons were not residents of the Williamsville Central School District, and were, therefore, no longer permitted to attend respondent's schools as of May 10, 1993.

Petitioner commenced this appeal on May 5, 1993 and requested a stay pursuant to 8 NYCRR '276.1. On May 14, 1993, I issued an order requiring respondent to continue to admit petitioner's sons to its schools, pending a final decision on the merits.

Petitioner contends that respondent violated 8 NYCRR '100.2(y) because the basis for the decision was not set forth in the district's written determination; petitioner was not given the opportunity to submit information concerning his sons' right to attend school in the district; and petitioner was not advised of his right to appeal the determination. Petitioner further contends that although he has temporary custody of his sons, their permanent residence remains in respondent's district, and he is without legal authority to remove them from the district.

Respondent maintains that it has not violated '100.2(y) and argues that petitioner's sons reside with petitioner outside the district. Respondent also argues that the appeal should be dismissed because there is another action pending and petitioner has failed to state a cause of action.

At the outset, I do not find that respondent's procedural arguments constitute grounds for dismissal of this appeal. Contrary to respondent's assertion, I find that the petition sufficiently states a cause of action. In addition, although petitioner previously commenced an Article 78 proceeding in Supreme Court involving the same issues, the proceeding has been discontinued by stipulation of the parties. Therefore, it appears that there is no other action presently pending.

Section 100.2(y) of the Regulations of the Commissioner of Education provides, in pertinent part:

Section 100.2(y) further provides that the written notice must state "... the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools ..." (8 NYCRR '100.2[y][2]) and "that the determination of the board may be appealed to the Commissioner of Education ..." (8 NYCRR '100.2[y][4]).

In this instance, the record shows that petitioner was afforded the opportunity to present information regarding his sons' residency prior to the assistant superintendent's final determination. However, the record also shows that the district never provided petitioner with the basis for its determination other than a conclusory statement that petitioner had "failed to establish a bona fide residence within the district." Furthermore, the district did not advise petitioner of the right to appeal. Accordingly, I find that the district violated the prescriptions of '100.2(y), and admonish it to comply henceforth with the procedures established therein (Application of Mandel, 29 Ed Dept Rep 187).

Nonetheless, since the matter is now before me and petitioner has had ample opportunity to present evidence in support of his claim, I will address the merits. Upon review of the record, I find that the weight of the evidence supports respondent's determination that petitioner's sons are not entitled to attend respondent's schools on a tuition-free basis.

Education Law '3202(1) provides, in pertinent part:

For purposes of this provision, a child's residence is presumed to be that of his parents (Appeal of Forde, 29 Ed Dept Rep 359; Matter of Delgado, 24 id. 279; Matter of Shelmidine, 22 id. 206). In cases 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, 104 NYS 122, aff'd 196 NY 551; Matter of Manning, 24 Ed Dept Rep 33). Where the child's parents are divorced and a court awards custody of the child to one parent, the child's residence is presumed to be with the custodial parent (Appeal of Juracka, 31 Ed Dept Rep 282; Appeal of Forde, supra). However, the presumption that a child resides with the custodial parent is rebuttable (Id.). Where a child's time is divided between two households, the determination of the child's residence rests ultimately with the family (Appeal of Kind, 32 Ed Dept Rep 584; Appeal of Juracka, supra; Appeal of Forde, supra).

In this case, petitioner was awarded temporary custody of his sons. Therefore, the children's residence is presumed to be with petitioner. Notwithstanding petitioner's assertions to the contrary, there is no evidence that the temporary custody order requires that the children remain in respondent's schools. Furthermore, it is undisputed that the children lived with petitioner, outside respondent's district, during the 1992-93 school year. Additionally, there is no evidence that petitioner ever moved into an apartment in respondent's district.

Petitioner, however, maintains that the children move freely between households. Petitioner also alleges in an affidavit submitted pursuant to 8 NYCRR '276.5, that during the month of August 1993, with the exception of a short period of time, the children lived with their mother in respondent's district, and that the law guardian recommended that the children split their time equally with their parents. The record, however, is devoid of any evidence of a custody arrangement that divides the children's time between two households. Petitioner has not submitted a copy of the temporary order of custody, the law guardian's recommendation or an affidavit from his sons' mother. Therefore, petitioner has failed to rebut the presumption that the children reside with him outside respondent's district.

It also appears from the custodial litigation that it is petitioner's intention to gain permanent custody of the children and to have them continue to reside with him. Since residence is based upon an individual's physical presence within the district and an intention to remain (Appeal of Bonfante-Ceruti, 31 Ed Dept Rep 38), I find that respondent correctly concluded that petitioner's sons do not reside in the Williamsville Central School District.

Education Law '3202(2) authorizes a school district to condition a nonresident's enrollment in its schools upon the payment of tuition. Since petitioner's sons are not residents of respondent's district, respondent has the authority to require petitioner to pay tuition as a condition of their continued enrollment. To the extent the children's mother pays school taxes on property in respondent's district, petitioner is entitled to a deduction from the tuition in the amount of such tax, as provided in Education Law '3202(3).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED, and

IT IS ORDERED that respondent comply henceforth with all procedures required by the provisions of 8 NYCRR '100.2(y).

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