Appeal of KEVIN B. BROWN, on behalf of his daughter AMBER SCOTT, from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.

Decision No. 14,760

(July 24, 2002)

Hodgson, Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cleveland Hill Union Free School District ("respondent") that his daughter, Amber Scott, is not a district resident. The appeal must be dismissed.

Amber enrolled in respondent"s schools at the beginning of the 2000-2001 school year, using petitioner"s address within the district. At some point during that school year, respondent"s registrar became aware that Amber"s parents had different addresses, and there was no record of custody in Amber"s file. As a result, the registrar asked petitioner to complete a custodial affidavit. Petitioner did so, and in the affidavit stated that by mutual agreement, Amber lived with him during the school year and with her mother during the summer.

In April 2001, a teacher notified the registrar that Amber had stated that she lived with her mother at an address in a neighboring district and spent weekends with petitioner. Respondent"s superintendent then notified Amber"s mother that a question had arisen regarding Amber"s residency and provided her with an opportunity to submit additional information. Petitioner notified the superintendent that he had already completed a custodial affidavit and the superintendent allowed Amber to complete the school year on that basis.

In September 2001, respondent"s administrative staff noticed that no student update form had been submitted for Amber. In response to questions from district staff, Amber indicated that her parents had not received an update form. This aroused the superintendent"s suspicion and an investigation into the matter ensued. At the superintendent"s request, an investigator conducted surveillance on eight days between September 21, 2001 and November 6, 2001. While the investigator did not observe Amber at petitioner"s address on any of the surveillance dates, he did observe Amber leaving her mother"s house on six separate occasions during this period. On four of the dates, petitioner was observed driving from his address to Amber"s mother"s address, picking Amber up and driving her toward school.

As a result of the investigation, respondent sent a letter to Amber"s mother, dated December 17, 2001, giving her an additional opportunity to submit proof of Amber"s residence within the district. On December 18, 2001, petitioner spoke with the superintendent by telephone and attempted to explain the custodial arrangement. The superintendent determined that Amber was not a district resident and this appeal ensued. Petitioner"s request for interim relief was rendered moot by respondent"s decision to allow Amber to remain in its schools pending a decision in this appeal.

Petitioner contends that Amber resides with him as a result of a "co-parenting" arrangement with Amber"s mother and that Amber is entitled to attend respondent"s schools tuition-free. Respondent contends that Amber resides with her mother outside of its district.

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 Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171; Appeal of Dimbo, 38 id. 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 Lavelanet, supra). Where a child's parents live apart, the child can have only one legal residence (Appeal of Lavelanet, supra; 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 Lavelanet, supra; Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142).

In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Razzano, supra; Appeal of Plesko, supra). Petitioner"s conclusory statements that he and Amber"s mother share joint custody of Amber are the only proof submitted by petitioner to support his claim that Amber is a resident of respondent's district. Petitioner did not produce a copy of their alleged custody agreement or even submit a statement from Amber"s mother in support of his contention.

I have previously held that where a court awards joint custody of a child and the child's time is essentially divided between two households, the parents may designate the child's residence (Appeal of Cortes, 37 Ed Dept Rep 114, Decision No. 13,818). However, in this case, I find that petitioner failed to sustain his burden of establishing either that there is a joint custody arrangement, or that pursuant to such an arrangement, Amber actually divides her time between the two households. In the absence of such proof, I cannot find that petitioner is entitled to designate respondent"s district as Amber"s residence for education purposes. Rather, the child's residency must be determined by examining the traditional residency factors, physical presence as an inhabitant in the district and an intent to reside in the district (Appeal of Razzano, supra; Appeal of Dimbo, supra).

In addition to respondent's surveillance results, the record reflects that Amber told her teacher that she lived with her mother outside respondent"s district. While respondent"s evidence is not overwhelming, petitioner offers no evidence or explanation as to why Amber was observed on multiple occasions leaving for school from her mother"s home outside respondent"s district and never observed at his home within the district.

In sum, the evidence before me is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioner"s daughter resides with her mother outside respondent"s district. Where evidence is insufficient for me to conclude that respondent acted arbitrarily or capriciously in making a residency determination, the determination will not be set aside (Appeal of Digilio, 37 Ed Dept Rep 25, Decision No. 13,795; Appeal of Steinberg, 36 id. 65, Decision No. 13,658).

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the district for admission on his daughter"s behalf at anytime, and upon sufficient proof of the child"s residency within the district, the child would be entitled to attend the district"s schools on a tuition-free basis (Appeal of Smith, 40 Ed Dept Rep 126, Decision No. 14,438).

THE APPEAL IS DISMISSED.

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