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Decision No. 16,522


 Appeal of HAROLD KING, on behalf of his daughter BRITTNEY, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,522

(August 26, 2013)

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

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

Petitioner resides in Hempstead (“Hempstead address”) within respondent’s school district. Petitioner’s daughter, Brittney, attended respondent’s high school (the “school”) during the 2011-2012 school year. In December 2011, respondent commenced a residency investigation based on concerns that Brittney actually resided with her mother in Roosevelt (“Roosevelt address”) outside the district.

Surveillance was conducted from December 2011 through May 2012 in which over 20 observations were made at the Hempstead address, the Roosevelt address, and various pick­ups and drop-offs at school district sites. Thereafter, petitioner was apparently advised that respondent concluded that Brittney resided with her mother at the Roosevelt address. By letter dated May 7, 2012, the superintendent informed petitioner of his determination that Brittney was not a district resident and would be excluded from the school. The letter also informed petitioner that, if he disagreed with the determination, he could appeal to the district’s Administrative Assistant for Central Registration (“administrative assistant”).

Petitioner appealed by letter dated May 8, 2012, in which he claimed that Brittney’s purported “legal guardian “and grandmother died in 2007 and Brittney’s mother inherited her house within the district (the “grandmother’s home”); and that the appropriate documentation would be forwarded. Petitioner also stated that he resided in the district and registered Brittney “who will reside with her father full time.” Respondent permitted Brittney to complete the academic year, but excluded her from the school thereafter. Petitioner did not appeal this decision, nor does the record indicate that he submitted the documentation referenced in his May 8, 2012 letter.

In early September 2012, Brittney attempted to register at the high school for her junior year but was not admitted. When petitioner went to the registration office to inquire as to why, he was reminded that Brittney’s exclusion had not been reversed, as she was only allowed to complete the previous academic year. On September 4, 2012, petitioner emailed the administrative assistant seeking Brittney’s admission to respondent’s schools, contending that she lived with him at the Hempstead address and that he shares custody with her mother, who now owns the grandmother’s home within the school district. Respondent denied his request for admission; however, the record is devoid of any written determination on the matter. This appeal ensued. Petitioner’s request for interim relief was granted on September 25, 2012.

Petitioner contends that respondent failed to follow proper procedure1 in making its determination and that Brittney resides with him at the Hempstead address within the district.

Respondent contends that its determination is neither arbitrary nor capricious because petitioner has failed to offer any evidence demonstrating that Brittney resides at the Hempstead address.

Initially, I must address a procedural matter. It appears from the sequence of events that respondent failed to comply with the procedures required by 8 NYCRR §100.2(y). Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools. This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district. It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24,Decision No. 15,430). The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).

Based on the record before me, I find that petitioner made a new request for Brittney’s admission in September2012 setting forth new – albeit minimal – information. However, there is no evidence that petitioner was afforded an opportunity to submit information concerning Brittney’s residence at that time nor did he receive a written determination, as required by 8 NYCRR §100.2(y).Accordingly, I remind respondent that it must comply fully with the procedures established in 8 NYCRR §100.2(y).

1 Petitioner contends that respondent failed to conduct a hearing after which a hearing officer should have issued a written report setting forth findings of fact, as required by Education Law §3214. The requirements of that statute, however, apply to student disciplinary proceedings and not to residency determinations.


Nonetheless, since the matter is now before me and petitioner has had ample opportunity to present evidence in support of his claim, I will address 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 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).

Although petitioner’s September 4, 2012, e-mail states that he shares custody of Brittney with her mother, the record is devoid of any court order of divorce, any court-ordered custodial arrangement, or any other written custodial arrangement. 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).

Here, I cannot find that petitioner has sustained his burden. Petitioner’s pleadings contain minimal information other than his conclusory statement that Brittney resides with him. He has failed to provide any documentary evidence or affidavits supporting his position. On this record, I cannot find that respondent’s determination that Brittney is not a district resident was arbitrary, capricious or unreasonable.

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the school district for Brittney’s admission at any time (Appeal of D.F., 39 Ed Dept Rep 106, Decision No.14,187; Appeal of Swezey, 39 id. 81, Decision No. 14,180;Appeal of Smith, 39 id. 28, Decision No. 14,163), shouldcircumstances change, and to present any new information documenting her residency.