Decision No. 13,850

(November 25, 1997)

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Ramapo Central School District ("respondent") that his son, Vance Plesko, does not reside in the Ramapo Central School District ("district"). The appeal must be dismissed.

Petitioner lives at 8 Steinway Court, Suffern, within the neighboring East Ramapo Central School District. He is divorced from Vance's mother, Elsie Plesko, and alleges that the divorce decree awarded sole custody of Vance to her.

On December 18, 1996, respondent's superintendent notified petitioner that a determination had been made that Vance did not reside within the district and would no longer be entitled to attend its schools. By letter dated January 9, 1997, the superintendent informed Elsie Plesko that she could submit additional information or documentation to establish residence within the district. Petitioner commenced this appeal on January 23, 1997. Petitioner's request for interim relief pending a determination on the merits was denied on February 7, 1997.

Petitioner contends that Vance lives with his mother and his older sister at 1042 5^th Street, Hillburn, within the district. He asserts that Vance has lived at that address since August 20, 1994 and intends to reside there indefinitely. He states that Vance sometimes stays with him at the Suffern address.

Respondent contends that Vance resides with petitioner at the Suffern address. Respondent also contends that this appeal should be dismissed as untimely, that the petition fails to state a claim upon which relief can be granted, that petitioner has no standing to bring this appeal, and that the petition was improperly served upon respondent.

Initially, I will address the issue of timeliness. Pursuant to "275.16 of the Commissioner's Regulations, an appeal to the Commissioner of Education under "310 of the Education Law must be brought within 30 days of the action complained of. The Commissioner may excuse a delay in commencing an appeal for good cause. Respondent contends that the petition is untimely because petitioner commenced this appeal on January 23, 1997, more that 30 days from the superintendent's December 18, 1996 letter to petitioner. However, it is unclear from the record that respondent provided petitioner with an opportunity to present evidence concerning Vance's residence as required by 8 NYCRR 100.2(y). The superintendent's December 18, 1996 letter to petitioner did not provide this information and respondent has failed to otherwise demonstrate that petitioner was made aware of this opportunity. The record does indicate that the superintendent eventually sent a letter to Elsie Plesko dated January 9, 1997 notifying her that she could present documentation to establish Vance's residence. Although this letter was not addressed to petitioner, it was sent to Elsie Plesko at petitioner's address. In view of these circumstances, and the fact that petitioner served his petition on January 23, 1997, within 30 days of the January 9 letter, I refuse to dismiss this petition as untimely.

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

A child's residence is presumed to be that of his parents or legal guardian (Appeal of Keenan, 36 Ed Dept Rep 6; Appeal of Juracka, 31 id. 282; Appeal of Pinto, 30 id. 374). 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; Appeal of Helms, 36 Ed Dept Rep 95; Appeal of Juracka, supra). Where the child's parents are divorced and a court order awards custody to one parent, the child's residence is presumed to be that of the custodial parent (Appeal of Petrie, 37 Ed Dept Rep ___, #13842, 10/23/97; Appeal of Cortes, 37 id. 114; Appeal of Forde, 29 id. 359; Appeal of Juracka, supra). However, that presumption may be rebutted.

In an appeal to the Commissioner of Education pursuant to Education Law "310, the petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR 275.10; Appeal of Samuels, 36 Ed Dept Rep 85). Petitioner has failed to meet that burden. Petitioner has not submitted any evidence to establish his son's residence within the district. Petitioner has not submitted a copy of the divorce decree nor any evidence concerning the residence of the alleged custodial parent, Elsie Plesko. Conspicuously absent is any statement or evidence from Elsie Plesko in support of the petition.

Respondent submitted an affidavit from its superintendent stating that a private investigation firm conducted surveillance on the student's alleged residence within the district on October 9, 30, 31 and December 3, 1996. According to the superintendent, the investigator never saw Vance leave or enter that address, although he was seen at petitioner's address outside the district. The superintendent also states that he called Elsie Plesko on several occasions at a telephone number provided by her, which was the telephone number for petitioner's address. He contends that despite his requests, she never explained why she was always at that address whenever he called. He also states that, despite his repeated efforts, Elsie Plesko never provided any documentation to establish residence within the district.

While the evidence submitted by respondent is not overwhelming, petitioner has failed to submit any proof that either Vance or his mother reside in the district. The evidence before me is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that Vance is not a resident of the district. Accordingly, respondent's determination will not be set aside.

In light of my decision in this matter, there is no need to address respondent's other arguments.

THE APPEAL IS DISMISSED.

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