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Decision No. 15,418

Appeal of BRUCE ROUSSEAU, on behalf of his daughter NIA, from action of the Board of Education of the Elmont Union Free School District regarding residency.


Decision No. 15,418


(June 30, 2006)


Kritzer & Preston, attorneys for petitioner, James G. Preston, Esq., of counsel


Colum P. Nugent, Esq., attorney for respondent


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

On March 26, 2003, petitioner registered Nia for kindergarten for the 2003-2004 school year in the district's Dutch Broadway Elementary School.  At that time, petitioner indicated that he lived on Caroline Street, in the district, and that Nia's mother lived in Queens, outside the district.  In November 2004, after Nia allegedly stated to her class that she lived in Queens, her teacher sent a "Request for Verification of Residence" form to the district's central registrar.  The registrar instituted an investigation and surveillance of both addresses.

By letter dated January 12, 2005, the district's superintendent notified petitioner and Nia's mother of her determination that Nia did not reside with petitioner on Caroline Street, that her attendance at Dutch Broadway was therefore unlawful and that Nia would be discharged from attendance in the district as of January 28, 2005.  The superintendent informed petitioner that he had 10 days to appeal her determination in writing.  Petitioner appealed this determination to the registrar and the district scheduled a hearing before a district administrative review officer ("ARO").  Following a hearing, the ARO determined on September 12, 2005 that Nia was in the defacto custody of her mother, primarily residing with her outside the district, and therefore would not be permitted to remain in the district's schools.  This appeal ensued.  Respondent permitted Nia to remain in school until the resolution of this appeal.

     Petitioner asserts that he is Nia's primary custodial parent and that she resides with him on Caroline Street within the district.  He states that he did not receive the ARO's notice of hearing until July 5, just four business days prior to the hearing, and as a result was denied due process because he was not afforded sufficient opportunity to retain legal counsel.  Petitioner also contends that he was denied due process because the ARO did not properly advise him of his right to counsel or of his burden of proof at the commencement of the hearing.  Petitioner asserts that the ARO's decision is unsupported by evidence and is arbitrary and capricious.  He also asserts that the ARO has no legal authority or jurisdiction to determine custody pursuant to New York State Domestic Relations Law.  Petitioner seeks a determination that Nia resides with him within the district, or an order for a new hearing with 30 days notice to permit him to retain counsel.

     Respondent denies that petitioner is Nia's primary custodial parent and contends that petitioner has failed to rebut the surveillance evidence that Nia resides with her mother outside the district.  Respondent also denies that petitioner was denied due process.

Petitioner received notice of the hearing four business days, and six calendar days, before the hearing.  Moreover, the record indicates that petitioner never requested an adjournment either prior to or at the hearing, and he replied that he was ready to proceed when questioned by the ARO at the hearing.  Furthermore, petitioner had requested a hearing in his appeal to the district, so he had more than six months notice that a hearing would be forthcoming.  Accordingly, under the circumstances of this case, I find the notice sufficient.

The appeal must be dismissed on the merits.  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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

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 affd, 196 NY 551; Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935).  In cases where parents have joint custody, 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 T.K., 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849; Appeal of Weik and Teufel, 41 id. 80, Decision No. 14,621).  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 Williams, 42 Ed Dept Rep 8, Decision No. 14,756; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171).

In this case, petitioner has not produced a custody order.  He claims in the petition that he is Nia's primary custodial parent and that Nia resides with him.  At the hearing, however, petitioner admitted that Nia had lived with her mother prior to enrolling in kindergarten and that Nia spent time with both parents because he works and attends college at night.  Petitioner stated that Nia should be eligible to go to school in the district because he pays property taxes there.  He also stated that he drops Nia off at school in the mornings and attends teacher conferences.

Respondent's witnesses offered contradictory evidence.  The district's residency consultant testified that school staff informed him that they had no contact with petitioner, and that Nia's mother drove her to school every morning, was the contact person for the school and was the parent who attends conferences.  One investigator testified that he observed petitioner's home on three mornings in November and December 2004 between 6:00 and 8:00 a.m. and saw petitioner exit the home alone, even though Nia was present in school on those mornings.  A second investigator testified that in December 2004, his employee observed Nia's mother pick her up at school, proceed to the Queens address and remain there until the investigator left at 10:00 p.m.  The following morning, and on another date in December, the investigator arrived at that address at 6:00 a.m., and at approximately 8:30 a.m., he observed Nia and her mother leave the house and proceed to school.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).  Petitioner has failed to meet his burden of establishing that Nia resides primarily with him in the district.  Notably, Nia's mother was not present and did not testify at the hearing.  Petitioner provided no other evidence, affidavits or witnesses and has otherwise failed to sufficiently rebut the surveillance evidence.  Moreover, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of O'Herron, 41 id. 1, Decision No. 14,591; Appeal of Smith, 40 id. 126, Decision No. 14,438).

Based on the record before me, I cannot conclude that respondent's determination was arbitrary or capricious.  Accordingly, I find no basis to disturb respondent's determination that Nia is not a district resident.  While the appeal must be dismissed, I note that petitioner may reapply to the district for admission for Nia at any time should circumstances change (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of Holder, 44 id. 32, Decision No. 15,088).

In light of this disposition, I need not address petitioner's remaining contentions.