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Decision No. 16,087

Appeal of CESAR and CATHY GRILLO, on behalf of their children ARIELLE and CRISTIAN, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision No. 16,087

(July 2, 2010)

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that their children, Arielle and Cristian, are not district residents.  The appeal must be dismissed.

Prior to a recent separation, petitioners both resided at 23 Franklin Avenue in respondent’s district for seven years.  Following the separation, petitioners have maintained separate residences, with Cesar Grillo remaining in the in-district residence and Cathy Grillo living in an apartment outside of the district.    On October 30, 2009, the district notified petitioners that their children were not eligible to attend respondent’s schools.  On November 5, 2009, respondent’s director of pupil personnel services conducted a residency hearing and determined that petitioners’ children were not district residents.  Petitioners appealed this determination to respondent, which affirmed the determination.  This appeal ensued.  Petitioners’ request for interim relief was denied on December 29, 2009. 

Petitioners argue that they share custody of Arielle and Cristian, and that the children spend “most of their school days” with their father at the in-district residence and stay with their mother on the weekends.  Petitioners argue that their children’s primary residence remains with their father at the in-district property, and as such, are district residents. 

Respondent contends that petitioners have failed to demonstrate that the children are district residents, as they primarily reside with their mother outside of the district.  Further, respondent contends that it acted lawfully and that its determination was not arbitrary, caprious nor an abuse of discretion.

With respect to petitioners’ appeal on behalf of Arielle, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  The district permitted Arielle to complete her final year at Malverne High School pursuant to a district policy which permits students to complete their senior year without payment of tuition, where the student was a legal district resident during their junior year.  As such, the appeal is dismissed as moot with respect to Arielle.

The appeal with regard to Cristian must also 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

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.P., 45 Ed Dept Rep 156, Decision No. 15,288).  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.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  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 Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

In support of their petition, petitioners provide letters signed by each of the petitioners and a letter from Ceasar Grillo’s matrimonial attorney, all stating that the primary residence of the children is at the in-district property. 

Respondent based its residency determination on a series of nine surveillances conducted over a two week period.  The surveillance report provides specific dates and times which demonstrate that on seven out of eight mornings, petitioner Cathy Grillo was observed leaving her out-of-district residence with Cristian.  On the one evening that surveillance was conducted, petitioner Cathy Grillo was observed leaving the in-district residence with the children and returning to her home for the evening.  The evidence offered by petitioners does not explain the discrepancy between their contentions and the surveillance report.  Further, petitioners have not served a reply to the proof submitted by respondent.  Accordingly, based upon the record before me, I cannot conclude that respondent acted arbitrarily or capriciously in determining that Cristian is not a district resident. 

While the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to the district on Cristian’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.