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Decision No. 13,820

Appeal of ODESSA BOUTTRY-MARTIN, on behalf of TYRESSE MARTIN, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 13,820

(August 18, 1997)

Ingerman Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel

Cate, Acting Commissioner.--Petitioner appeals the determination of the Uniondale Union Free School District ("respondent") that her son is not a resident of the district. The appeal must be sustained.

Petitioner is the mother of Tyresse Martin, who has been a student at the Grand Avenue Elementary School in respondent's district since January 5, 1995. By letter dated February 27, 1997, petitioner was notified that respondent determined that her son was not a legal resident of the district based on its investigation of their residency. Respondent conducted a surveillance of petitioner on February 6, 10, 11, 12, 13, 20, 24 25, 26 and 27, 1997 which placed petitioner's son outside the district in Queens. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on May 1, 1997.

Petitioner alleges that she resides in the district with her parents and that her husband, from whom she is separated, maintains a residence outside the district. Petitioner seeks a determination that her son is a resident of the district and is entitled to attend district schools without the payment of tuition. Respondent contends that its determination was rational and supported by the record. Respondent also contends that the appeal is untimely.

Section 275.16 of the Commissioner's regulations requires that an appeal be instituted within 30 days after the making of the decision or the performance of the act of which petitioner complains, provided that the Commissioner may excuse a delay in commencing an appeal for good cause. Respondent's determination was dated February 27, 1997 and this appeal was commenced on March 3, 1997. However, by letter dated March 10, 1997, petitioner was informed by my Office of Counsel that her appeal did not comply with the Commissioner's regulations, and advised her that a corrected petition could be served within two weeks of the date of the letter. Petitioner served the corrected petition on April 14, 1997, more than two weeks from the date of the letter from Office of Counsel. Although respondent argues that the appeal is untimely, the Commissioner has excused delays in residency cases where, inter alia, the facts suggesting residency in the district are compelling, the delay is deminimus, and requiring the student to reapply to the district level before appealing to the Commissioner would not promote judicial economy. In view of the presence of these factors in the instant case, I will excuse the delay.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220). 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, 109 NYS 403; Appeal of Helms, 36 Ed Dept Rep 95; Appeal of Juracka, 31 id. 282; Appeal of Forde, 29 Ed Dept Rep 359). Where a child's time is divided between two households, the determination of the child's residence rests ultimately with the family (Appeal of Juracka, supra; Appeal of Forde, supra).

In this case, petitioner presents documentation concerning her residence in the district, including a driver's license, bank statements, insurance cards and postmarked mail. Petitioner explained that when she and her husband separated, he obtained a residence in Laurelton, outside respondent's district. Petitioner claims that her husband subsequently moved out-of-state in April 1997.

Respondent contends that petitioner is not a resident of the district since its surveillance placed her in Queens. Respondent also notes that petitioner's son told his teacher that he lived in Queens and was tired since he had to get up early in the morning to go to his grandfather's house. Tyresse also told the school nurse that he lives in Queens with his mom, dad and sister and used her phone on several occasions to call and find out if he should go to his grandfather's house or wait for his dad to pick him up.

Based on the record before me, I find that petitioner is a resident of respondent's district. She presents documentary evidence of residence and the information from the surveillance placing petitioner and her child outside the district are explained by her husband's residence there prior to April 1997. Respondent attempts to discredit petitioner's contention that she is a resident of the district based on statements made by her son. While these statements are troubling, I find that the observations of a second grader concerning his residence are not determinative in this case. However, respondent is free to revisit the issue of petitioner's residency in the future, since the record reflects that petitioner's husband has moved to North Carolina and no longer resides in Queens.