Appeal of HERSSON VIDES, on behalf of his children HERSSON and GIOVANNI, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,514

(August 16, 2013)

Ingerman Smith, LLP, attorneys for respondent, Noah Walker, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District that his children, Hersson and Giovanni, are not district residents. The appeal must be dismissed.

Petitioner and the children’s mother live apart. Petitioner resides in Baldwin, New York. The children’s mother resides outside the district in Roosevelt, New York. After being registered in respondent’s district, petitioner’s children began attending school there on September 7, 2012.

On or around September 10, 2012, the district commenced an investigation which included surveillance at both the Baldwin and Roosevelt addresses on various dates between September 11, 2012 and September 21, 2012. During the surveillance, petitioner’s children were observed leaving the Roosevelt address on several mornings. By letter dated September 19, 2012, the district’s Director of Pupil Services (“director”) notified petitioner that she had reason to believe that petitioner’s children did not reside within respondent’s district. The director offered petitioner the opportunity to meet and to provide evidence of his children’s residency.

A residency meeting was held on September 25, 2012.At the meeting, petitioner and the student’s mother explained that, due to petitioner’s work schedule, the children’s mother takes one child to school after he is dropped off at her house by petitioner in the morning and that she picks up both children after school. After the September 25, 2012 meeting, petitioner was advised that the determination that his children were not district residents was upheld and petitioner’s children were excluded from school effective October 2, 2012. This appeal ensued. Petitioner’s request for interim relief was denied on October 9, 2012.

Petitioner argues that his children are residents of respondent’s district and entitled to attend its schools without the payment of tuition. Respondent contends that the students reside outside the district with their mother and that its determination that the students are not entitled to attend Baldwin schools was neither arbitrary nor capricious.

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 personresides 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No.15,924). “Residence” for purposes of Education Law §3202is 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 Naab, 48 Ed Dept Rep 484,Decision No. 15,924). 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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. 337affd, 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).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828). 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 (Appeal of White, 48 Ed Dept Rep295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

To support his claim that his children reside with him in respondent’s district, petitioner submits only a health insurance letter dated May 24, 2012 and a health insurance statement dated May 29, 2012. However, such documentation is not dispositive of petitioner’s claim that his children reside with him in respondent’s district.

In addition, petitioner’s undocumented assertions fail to rebut respondent’s surveillance evidence. Respondent conducted surveillance on the Roosevelt address on five mornings between September 11, 2012 and September 21, 2012.On each of the five mornings, the children were observed leaving the Roosevelt address with their mother. On three of the four mornings that surveillance was conducted at the Baldwin address, the students were not observed exiting or entering the location. On one morning, the students were observed at the Baldwin address, but only after they had been observed leaving the Roosevelt address with their mother earlier that morning.

Petitioner claims that court documents show that his children reside with him in Baldwin on Saturdays through Thursdays. However, he fails to provide such documents. He also asserts that he and the children’s mother arranged a visitation schedule which includes some weekday evenings, but he fails to provide evidence of the visitation schedule. Further, petitioner has presented no evidence to substantiate his statements that due to his work schedule, the children’s mother helps pick the children up from school on certain occasions.

Accordingly, petitioner has failed to meet his burden of proving that his children are physically present in the district. Based on the record before me, I cannot find that respondent’s determination was arbitrary and capricious.

Although the appeal must be dismissed, I note that petitioner retains the right to apply for admission to the district on his children’s behalf in the future, should circumstances change, or to present any new information or documentation for respondent’s consideration.

As a final matter, although not raised by petitioner, it appears that respondent failed to comply with the procedures required by 8 NYCRR §100.2(y). Here, while the record includes respondent’s September 19, 2012 letter offering petitioner the opportunity to meet and to provide evidence of his children’s residency, the record is not clear that petitioner was provided written notice of respondent’s determination after the September 25, 2012residency meeting as required by 8 NYCRR §100.2(y).Accordingly, I admonish the district to comply with the procedures established in 8 NYCRR §100.2(y) in the future.

THE APPEAL IS DISMISSED.

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