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Decision No. 14,797

Appeal of RYAN C. JONES and ULANDA L. FRANK-JONES, on behalf of their daughter MIRANDA, from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.

Decision No. 14,797

(August 23, 2002)

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

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

It is undisputed that petitioner Ryan C. Jones resides within respondent"s district and petitioner Ulanda L. Frank-Jones resides in a neighboring district. Miranda has attended respondent"s schools since September 2000. In the course of investigating the residence of another student, respondent"s investigators observed Miranda leave her mother"s residence and proceed to school. Upon receiving this information, respondent"s superintendent directed an investigation into Miranda"s residence. Ten days of surveillance were conducted from March 15, 2002 through April 17, 2002. Miranda was observed six times leaving from her mother"s residence and proceeding to school. On two other days, she was observed being dropped off at school in a vehicle that was routinely observed at her mother"s residence. Miranda was not observed at her father"s house on any of the surveillance days.

By letter dated April 22, 2002, the superintendent notified Miranda"s mother that a question had arisen regarding Miranda"s residency and provided her with an opportunity to submit information. The district also provided her with a copy of the surveillance report. On May 2, 2002, respondent"s registrar telephoned Miranda"s mother and asked if there were any legal custody papers that would provide information regarding Miranda"s residence. Petitioners did not submit any written documentation and, by letter dated May 9, 2002, the superintendent made a determination that Miranda was not a district resident. However, the superintendent allowed Miranda to complete out the school year in the district"s schools.

Respondent"s investigator conducted additional surveillance on May 30 and June 3, 2002, apparently in response to petitioners" assertions that Miranda"s father drops Miranda off at her mother"s house before 6:00 a.m.. On these two days, Miranda was observed leaving her father"s house at approximately 7:00 a.m. and being driven to a neighbor"s house.

Petitioners contend that they have been separated since 1997 and that they share custody of Miranda by mutual agreement. They claim that Miranda spends four nights a week and alternate weekends at her father"s house. Respondent contends that Miranda resides with her mother outside 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). I find that petitioners failed to sustain their burden of establishing either that there is a joint custody arrangement, or that pursuant to such an arrangement, Miranda actually divides her time between the two households. In the absence of such proof, I cannot find that petitioners are entitled to designate respondent"s district as Miranda"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).

While respondent"s evidence is not overwhelming, petitioners do not provide any evidence to support their claim of a joint custody arrangement. Petitioners offer no explanation for the results of the initial surveillance nor do they attempt to counter respondent"s allegation that they changed their daily routine, as indicated by the second surveillance, solely in response to respondent"s investigation.

In sum, the evidence before me is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioners" 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 Brown, 42 Ed Dept Rep ___, Decision No. 14,760; Appeal of Digilio, 37 id. 25, Decision No. 13,795; Appeal of Steinberg, 36 id. 65, Decision No. 13,658).

While the appeal must be dismissed, I note that petitioners retain the right to reapply to the district for admission on Miranda"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).