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Decision No. 14,620

Appeal of MARILYN J., on behalf of KEVIN W., from action of the Board of Education of the Eden Central School District regarding residency.

Decision No. 14,620

(August 13, 2001)

Hodgson, Russ, Andrews, Woods & Goodyear, LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals a determination by the Board of Education of the Eden Central School District ("respondent") that her son, Kevin, is not a resident of respondent"s district. The appeal must be dismissed.

Petitioner is the mother of twelve-year-old Kevin. Petitioner and Kevin"s father are divorced and have joint legal custody of Kevin, pursuant to a court order, issued on September 13, 2000, and finalized on October 26, 2000. The terms of this custody order provide for the parents to have joint legal custody of Kevin. However, his mother was "designated as the primary residential parent of the child for school purposes only." Kevin"s father resides in the Evans-Brant Central School District, a/k/a Lake Shore ("Lake Shore"). Petitioner had resided at 8872 Woodside Drive, Eden, New York, within respondent's district, with her husband, Kevin, and another son. Due to an apparent domestic dispute between petitioner, Kevin, and her husband, on October 20, 2000, the Erie County Family Court issued an Order of Protection, wherein petitioner was ordered to keep Kevin away from the residence at 8872 Woodside Drive. In a separate Order of Protection dated November 2, 2000 petitioner was also ordered to stay away from the Woodside Drive address. After the issuance of the Orders of Protection, petitioner rented a residence at 8900B Lake Shore Road, outside respondent's district. As a result of the domestic strife in his mother"s household, Kevin went to live with his father in September 2000.

Kevin has attended Eden schools since 1992. At the beginning of the 2000-2001 school year, Kevin"s father enrolled him in the Lake Shore district, where he attended school for approximately five days. However, following the issuance of the first custody order (September 13, 2000) designating petitioner's residence as Kevin"s residence for school purposes, Kevin"s parents enrolled him in respondent"s district.

By letter dated November 3, 2000, respondent"s superintendent, Robert E. Zimmerman, informed petitioner that her son could no longer attend the district's schools, as neither she nor his father resided within the district. Petitioner was given until November 8 to present evidence of residency to respondent. By letter dated November 8, 2000, petitioner stated that she intended to return to her residence at 8872 Woodside Drive. She viewed her absence as temporary, and solely a function of the court"s Order of Protection. By letter dated November 9, 2000, Superintendent Zimmerman informed petitioner that her son would not be allowed to attend respondent's schools after November 15, 2000.

Petitioner attempted to enroll Kevin in the Lake Shore schools subsequent to respondent"s determination but Kevin was denied admission since petitioner asserted that her permanent residence was within respondent's district. This appeal ensued. Petitioner"s request for interim relief was granted on December 21, 2000.

Petitioner contends that she and her husband have had marital difficulties. She claims that she left the residence at 8872 Woodside Drive due to those difficulties. However, it is her intention to reconcile with her husband and move back into the house on Woodside Drive. She claims that the rental property on Lake Shore Road is a temporary residence. Additionally, she claims that respondent does not want Kevin in its district because he has behavioral problems.

Respondent asserts that neither petitioner nor Kevin"s father currently reside in its district. Furthermore, Kevin admittedly lives with his father in the Lake Shore district. Additionally, respondent contends that the Orders of Protection specifically prohibit petitioner and Kevin from living at the Woodside residence. Respondent also alleges that petitioner attempted to mislead it by stating that she had rented a room in a house within the district, when in fact the owner of that house denied that either she or Kevin lived there. Finally, respondent denies that its actions are in any way related to Kevin"s behavioral problems.

The appeal must be dismissed. 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 Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Rosati, 38 id. 216, Decision No. 14,018). Residence for purposes of "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Silvestro, 40 Ed Dept Rep ___, Decision No. 14,476; Appeal of Gentile, 39 id. 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Morgan, supra; Appeal of Cortes, 37 Ed Dept Rep 114, Decision No. 13,818; Appeal of Simond, 36 id. 117, Decision No. 13,675). Where a child's parents live apart, the child can have only one legal residence (Appeal of Plesko, 37 Ed Dept Rep 238, Decision No. 13,850). Where a court order awards joint legal custody to both parents, and the child's time is essentially divided between two households, it is the parents' prerogative to designate the child's residence for education purposes (Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142; Appeal of Cortes, supra). However, in this case neither parent currently resides within respondent's district. Thus, Kevin"s residency must be determined by looking at the traditional residency factors - physical presence as an inhabitant in the district and an intent to reside in the district (Appeal of Silvestro, supra; Appeal of Epps, supra; Appeal of Razzano, supra).

While petitioner claims she wants to return to live in respondent's district, she has presented no evidence of her efforts to do so. There is no statement from her husband concerning efforts to reconcile. Respondent"s superintendent spoke to petitioner"s husband in late October 2000 and he told him that his wife had access to his house, stopped there from time to time, but was not residing there. There is nothing in the record indicating efforts to terminate the Orders of Protection that keep her and Kevin from the Woodside Drive address, nor is there anything in the record indicating whether or not petitioner has any ownership or other interest in the Woodside residence or any other property within respondent's district.

In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR "275.10; Appeal of Razzano, supra; Appeal of Plesko, supra). On the basis of the evidence in the record before me, I find that petitioner has failed to support her claim that she lives in respondent's district or intends to return to it. Kevin admittedly resides with his father outside the district. Thus, it was reasonable for respondent to conclude that Kevin resides outside of its district and is not entitled to attend the district"s schools tuition-free.

While the appeal must be dismissed for the reasons described above, I note that petitioner retains the right to reapply to the district for Kevin's admission should the circumstances described in this appeal change (Appeal of Swezey, 39 Ed Dept Rep 81, Decision No. 14,180).