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Decision No. 13,482

Appeal of CARL ALLEN, on behalf of CORRIE ALLEN, from action of the Board of Education of the Kenmore-Town of Tonawanda Union Free School District regarding student residency.

Decision No. 13,482

(September 5, 1995)

Barbara M. Sims, Esq., attorney for petitioner

Norton, Radin, Hoover, Freedman, attorneys for respondent, David A. Hoover, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's determination that his daughter, Corrie, is not a resident of the district. The appeal must be dismissed.

Petitioner is a resident of the Kenmore-Town of Tonawanda Union Free School District ("respondent"). He is divorced from Corrie's mother, who resides in Buffalo, a neighboring school district. Pursuant to a separation agreement and subsequent modification, petitioner and Corrie's mother agreed that while they would have joint custody of Corrie, Corrie's mother would have primary custody and Corrie would reside with petitioner.

On February 22, 1995, respondent's attendance counselor visited petitioner's home to inquire about Corrie's frequent absences and tardiness, and the fact that she was frequently brought to school and picked up by her mother. Petitioner answered the door and told the attendance counselor that Corrie was with her mother. On February 23, 1995, respondent's Director of Pupil Services wrote to petitioner and advised him that respondent believed that Corrie did not reside with petitioner and set a March 3, 1995 deadline for submission of documentation demonstrating Corrie's residence. On February 27, 1995, one of petitioner's neighbors informed respondent that Corrie was only present with her father on the weekends. On March 1, 1995, petitioner's attorney wrote to respondent and advised of petitioner's divorce and the custodial arrangements; however, she did not supply a copy of the divorce decree. The letter also contained photographs purportedly representing Corrie's bedroom in petitioner's residence. On March 13, 1995, respondent again wrote to petitioner and requested a copy of the portion of the divorce decree that described the custodial relationship of the parties. Petitioner never replied to the March 13, 1995 letter.

Simultaneously, respondent retained a private investigator to determine whether Corrie actually resided with her father. The investigator reported that on all seven surveillances conducted between March 9, 1995 and March 24, 1995, Corrie's mother was seen dropping Corrie off at petitioner's house between 8:10 am and 8:23 am. The investigator then observed petitioner drive Corrie to respondent's school and drop her off.

Thereafter, respondent wrote to petitioner on April 4, 1995 and informed him that it did not believe that Corrie was a resident of its district and that she would be excluded from school as of April 7, 1995. Petitioner was also advised of his right to appeal the decision to the Commissioner. This appeal ensued. Respondent agreed to permit Corrie to remain in its schools pending a determination on 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 Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446; Matter of Buglione, 14 id. 220).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). 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. 377, 104 NYS 122, aff'd 196 NY 551; Appeal 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. In this instance the custody arrangement between the parents is less than clear. The parties purportedly have joint custody, with Corrie's mother being the primary custodian, and petitioner providing the residence for Corrie.

In making a determination of residency for a child not living with a custodial parent, a board of education must consider several factors including the extent of time the child actually lives in the district (Vaughn, et al. v. Bd. of Ed., 64 Misc.2d 60, 314 NYS2d 266), and the intent of the family members to have the child reside in the district (Matter of Richards, 25 Ed Dept Rep 38; Appeal of Whiteman, 24 id. 337). In those cases where the child's time is essentially divided between two separate households and the parents both assume day-to-day responsibility for the child, the determination of the child's residence must ultimately rest with the family. In such cases, the custodial parent may designate the child's residence for purposes of Education Law '3202 (Appeal of Forde, 29 Ed Dept Rep 359).

Section 100.2(y) of the Regulations of the Commissioner of Education sets forth the procedures to be followed by the board of education in determining the residency of a student. Pursuant to that regulation, a board is required to afford a student, the student's parent or a person in parental relationship to the student an opportunity to be heard on the issue of residence. Where proper procedures have been followed, a district's determination as to the residence of a child will not be set aside unless it is shown to be arbitrary or unreasonable (Matter of Buglione, 14 Ed Dept Rep 220; Matter of Wadas, 21 id. 577).

I find that respondent has complied with the procedures required by 8 NYCRR '100.2(y) by its letters of February 23, 1995 and March 13, 1995, which provided petitioner with a reasonable opportunity to present information regarding his daughter's residence. Although petitioner's attorney provided respondent with information which sought to explain the circumstances surrounding Corrie's residence, respondent's request for clarification of this information went unanswered by petitioner. Respondent simultaneously sought the assistance of a private investigator to attempt to ascertain Corrie's residence.

While Corrie's parents have produced documents which attempt to demonstrate that Corrie resides with her father, their actions in this matter belie that assertion. Corrie's mother was seen dropping Corrie off on all seven occasions the investigator set up surveillance. Respondent's teachers report that Corrie's mother frequently picks her up at school. Corrie was not present on a home visit. Indeed, other than the document which states that Corrie's residence is with her father and the photographs of her room at petitioner's house, there is not one shred of evidence which supports the allegation that Corrie actually resides with petitioner. I do not find the photographs of Corrie's room at petitioner's house compelling evidence that Corrie resides there, as it would not be unusual for each parent in a situation such as petitioner to maintain a bedroom for the child. However, the mere fact that the bedroom is maintained and that it contains some of Corrie's clothes does not in and of itself establish residency.

While the parties in a joint custody situation may determine the child's residence, it must be an actual residence. In Appeal of Forde, supra, it was uncontested that the child in question spent a substantial amount of time with the noncustodial parent. That is not the case here. In this matter, there is no evidence that Corrie spends a substantial amount of time with petitioner. Thus, in light of the investigator's report, respondent's observation that Corrie was frequently picked up by her mother, the fact that Corrie was not present when respondent visited petitioner's home, and petitioner's failure to reply to respondent's request for further information, I do not find respondent's determination that Corrie is not a resident arbitrary or unreasonable. Accordingly, respondent's determination will not be set aside (Appeal of Brutcher, supra; Appeal of Ritter, supra; Matter of Delgado, supra).