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Decision No. 14,903

Appeal of RAY DIFALCO, on behalf of his son JOSEPH, from action of the Board of Education of the Clarkstown Central School District regarding residency.



(July 22, 2003)


Lexow, Berbit & Associates, attorneys for respondent, Janet B. Rappe, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Clarkstown Central School District ("respondent") that his son, Joseph, is not a district resident.  The appeal must be dismissed.

In September 2002, Joseph"s mother enrolled him in respondent"s schools, using a lease on an apartment within the district as proof of residency.  A question arose as to Joseph"s actual residence after Joseph told a teaching assistant that he lived at an address in Nanuet, outside the district.  Thereafter, on October 24 and 25, 2002, a private investigator observed Joseph and his mother leave a Nanuet address and drive to school.  The investigator reported that the vehicle used by Joseph"s mother was registered to petitioner at the Nanuet address.

By letter dated October 28, 2002, addressed to Mr. and Mrs. DiFalco at the Nanuet address, respondent"s assistant business administrator notified petitioner that he had determined that Joseph did not reside within the district.  Petitioner commenced this appeal on November 1, 2002, but it was held in abeyance while the district gave petitioner the opportunity to submit additional evidence of residency.  On or about November 18, 2002, petitioner submitted additional information.  By letter dated November 21, 2002, respondent"s assistant superintendent for business notified petitioner that he had determined that Joseph was not a district resident.  Joseph was allowed to attend school in the district until December 13, 2002.  Petitioner"s request for interim relief was denied on December 17, 2002.

Petitioner contends that he and Joseph reside within the district.  He asserts that Joseph resides with him, but also stays at his mother"s house in Nanuet when petitioner travels on business.

 Respondent contends that Joseph resides with his mother in Nanuet and that petitioner has not established that either he or Joseph resides within the district.  Respondent further asserts that the residence used to enroll Joseph is owned by Joseph"s maternal grandparents and that petitioner"s alleged residence is owned by  Joseph"s paternal grandmother. 

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 Perez, 42 Ed Dept Rep ___, Decision No. 14,779; Appeal of Thomas, 41 id. 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, Decision No. 14,603).

A student"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Seger, 42 Ed Dept Rep __, Decision No. 14,849; Appeal of Donohue, 41 id. 26, Decision No. 14,601; Appeal of Weaver, 39 id. 588, Decision No. 14,320).  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 Seger, supra; Appeal of Weik and Teufel, 41 id. 80, Decision No. 14,621 ).  Thus, where a court order awards custody to one parent, the child"s residence is presumed to be that of the custodial parent (Appeal of Seger, supra; Appeal of Weik and Teufel, supra ).

In cases where parents have been awarded joint custody or the child"s time is "essentially divided" between two households and both parents assume responsibility for the child, the decision regarding the child"s residency lies ultimately with the family (Appeal of Seger, supra; Appeal of Weik and Teufel , supra; Appeal of Cortes, 37 Ed Dept Rep 114, Decision No. 13,818 ).  However, when parents claim joint custody but do not produce proof of the child"s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Seger, supra; Appeal of Lavelanet, 39 Ed Dept Rep 56, Decision No. 14,171 ; Appeal of Razzano, 38 id. 782, Decision No. 14,142 ).  A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Washington, 42 Ed Dept Rep __, Decision No. 14,820; Appeal of James, 41 id. 487, Decision No. 14,752).

In this appeal, petitioner submitted a separation agreement that grants him and Joseph"s mother joint custody, but also states that Joseph shall reside with his mother.  Petitioner also submitted a cellular phone bill sent to him at the address within the district.  The evidence petitioner presented to the district included a business magazine subscription, a business credit card bill, a college alumni letter and a church collection envelope directed to petitioner"s alleged in-district address.  As noted by respondent, petitioner"s mother owns that residence.  Although petitioner may receive some business-related mail at that address, the documents he submitted do not clearly support his claim of residence.  Additionally, respondent contends that petitioner still owns the marital residence in another district.  Respondent"s investigation report and affidavits from school administrators indicate that Joseph"s mother brings him to school virtually every day.

On the record before me, I find that petitioner has not met his burden of demonstrating a clear legal right to the relief requested and of establishing the facts upon which relief is sought (Appeal of Washington, supra; Appeal of James, supra).  The scant evidence provided by petitioner does not support his claim of residency.  Moreover, petitioner asserted that Joseph resides with him only after questions arose as to Joseph"s mother"s residence.  This fact further suggests that petitioner is attempting to use his mother"s address so that Joseph may attend respondent"s schools.

As to custody, petitioner fails to establish that Joseph actually resides with him in contradiction of the terms of the separation agreement.  Notably absent from the petition is any statement from Joseph"s mother regarding Joseph"s actual residence.   Accordingly, based on the record before me, I cannot conclude that respondent"s decision was arbitrary or capricious.