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Decision No. 14,756

Appeal of PETER E. WILLIAMS, on behalf of his children ANTHONY and SHELBY, from action of the Board of Education of the Bayport-Blue Point Union Free School District, regarding residency.

Decision No. 14,756

(July 24, 2002)

Sari M. Friedman, Esq., attorney for petitioner

Cooper, Sapir & Cohen, PC, attorneys for respondent, David M. Cohen, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination by the Bayport-Blue Point Union Free School District ("respondent") that his children, Anthony and Shelby, are not district residents. The appeal must be dismissed.

Petitioner resides at 312 Gerritsen Avenue within respondent"s district, and claims that both Anthony and Shelby reside there with him. Petitioner alleges that he and his former wife were divorced in December, 1999, and entered into a stipulation on September 21, 2001, in Supreme Court, Suffolk County, with respect to custody, agreeing that Shelby will continue to remain in the schools of respondent"s district "for this calendar year." During the 2001-2002 school year, Shelby was a first grade student, and Anthony was a tenth grade student attending a BOCES program outside the district.

According to respondent"s attendance officer, Shelby was registered in May 2000 by her mother, who stated that her address was 301 Middle Road, Blue Point, within respondent"s district. On February 4, 2002, as a result of Shelby"s absence, the attendance officer attempted to reach Shelby"s mother by telephone, and found that the numbers provided had been disconnected. After sending a letter to Shelby"s mother, the attendance officer met with her on February 8, 2002, and was informed that she and the children had moved out of respondent"s district and into a neighboring school district. After investigating the matter more carefully, the attendance officer issued a letter on February 15, 2002, excluding both children from attendance effective March 15, 2002. This appeal was commenced on March 14, 2002. On March 28, 2002, I issued an interim order directing that Anthony and Shelby be allowed to continue in attendance, pending the ultimate determination of this appeal.

Petitioner bases his claim entirely on one page of the Supreme Court"s stipulation of September 21, 2001, and his assertion that his children live with him pursuant to joint legal custody. Respondent, on the other hand, presents the entire stipulation of September 21, 2001, together with a portion of the parents" separation agreement, and a portion of the divorce decree regarding custody. The separation agreement provides for joint custody, but "with residential custody to the wife." Similarly, the divorce decree also provides for joint custody, but "with the wife having physical custody." The stipulation of September 21, 2001, which occurred as a result of petitioner moving for a change of custody, provided for greater visitation rights on his part than contained in the separation agreement and divorce decree. However, aside from expanded visitation, the stipulation provides: "All other provisions of visitation and joint custody that are referred to in the partys" [sic] Divorce Agreement, which survived the Judgement of Divorce, which are not in conflict to what has just been stated in the record, remain in full force and effect."

Petitioner has not submitted a reply to address either the affirmative defenses in respondent"s answer, or to address respondent"s claim, based upon information personally obtained by its attendance officer from the children"s mother, that Anthony and Shelby do not live in the district. Instead, petitioner has served an attorney"s affirmation which attempts to set forth new claims against respondent, which are not relevant to the issue of residency, and which I will not consider.

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 L.W., 41 Ed Dept Rep ___, Decision No. 14,717; Appeal of Pierre, 40 id. 538, Decision No. 14,551; Appeal of Epps, 39 id. 778, Decision No. 14,377). 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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of James, 41 Ed Dept Rep ___, Decision No. 14,752; Appeal of Santana, 40 id. 57, Decision No. 14,420; Appeal of Cortes, 37 id. 114, Decision No. 13,818). Where a child's parents live apart, the child can have only one legal residence (Appeal of Lavelanet, 39 Ed Dept Rep 56, Decision No. 14,171; Appeal of Plesko, 37 id. 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 Lavelanet, supra; Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142; Appeal of Cortes, supra).

After reviewing the record, I find that petitioner has failed to establish that his children have the right to attend school in respondent"s school district on a tuition-free basis. In a case where a child"s parents have joint custody, and the child"s time is essentially divided between two separate households and both parents assume day-to-day responsibility for the child, it may be possible for a custodial parent to designate a child"s residence for purposes of Education Law "3202 (Appeal of Allen, 35 Ed Dept Rep 112, Decision No. 13,482; Appeal of Forde, 29 id. 359, Decision No. 12,319). However, where joint custody exists, but the child actually spends a substantial majority of his or her time with a custodial parent outside the district, the child"s residence must be determined by the usual considerations, including physical presence in the district and an intent to reside in the district (Appeal of Allen, supra, Decision No. 13,582; Appeal of Eisen, 33 Ed Dept Rep 401, Decision No. 13,093). I note the similarity between this case and Appeal of Lavelanet, supra, where there was also no proof that the child in question essentially divided her time between two households. Thus here, as in Lavelanet, I find it was reasonable for respondent to conclude that Anthony and Shelby reside outside respondent"s district and are not entitled to attend the district schools tuition-free.