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Decision No. 16,585


 Appeal of DAVID BALAJ, on behalf of his children LUKE and NATALIE, from action of the Board of Education of the Chappaqua Central School District regarding residency.

Decision No. 16,585

(January 17, 2014)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Lisa S. Rusk, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the Board of Education of the Chappaqua Central School District (“respondent”) that his children, Luke and Natalie, are not district residents. The appeal must be dismissed.

Petitioner allegedly resides within respondent’s school district in Chappaqua, N.Y. Luke and Natalie’s mother resides outside respondent’s district in the Pleasantville Union Free School District. According to the petition, upon commencement of a divorce action, Luke and Natalie’s time was divided between their mother’s and petitioner’s households pursuant to a visitation schedule issued by the Westchester County Supreme Court.

In November 2011, the assistant superintendent for business (“assistant superintendent”) received information that petitioner’s children did not reside within the district. In December 2011, respondent’s investigator initiated surveillance.

In the early morning hours on 9 days from December 7,2011 through January 4, 2012, Luke and Natalie were observed leaving the Pleasantville residence by car with their mother. On December 19, 2011, Luke and his mother were observed at the Pleasantville residence in the early morning before school. Surveillance also showed that on January 18 and 19, 2012, the children were seen returning to their mother’s Pleasantville residence in the afternoon.

By letter dated January 20, 2012, respondent’s superintendent informed petitioner and his wife that she had reason to believe that Luke and Natalie were not district residents. The superintendent also informed petitioner and his wife that she would consider information submitted on or before February 1, 2012 supporting the children’s right to attend district schools.

By affidavit sworn to on February 1, 2012, Luke and Natalie’s mother averred that, following her separation from petitioner, the children resided with their father at the Chappaqua address on the days they visited with him there.

By letter dated February 2, 2012, the superintendent notified petitioner and his wife that Luke and Natalie were not district residents and would be excluded from district schools effective February 17, 2012.

On February 17, 2012, petitioner’s mother, who allegedly owns the Chappaqua residence, met with the assistant superintendent and stated that she understood the situation but wanted to know how the children could finish the semester in the district. This appeal ensued. Petitioner’s request for interim relief was denied on March1, 2012.

Petitioner alleges that his children reside with him within the district, at the Chappaqua address, on specified days pursuant to a visitation schedule issued by the Westchester County Supreme Court.

Respondent alleges that petitioner’s children reside with their mother in Pleasantville, and that petitioner has failed to meet his burden of establishing the facts upon which he seeks relief. Respondent maintains that its decision was rational, well-supported by the evidence and neither arbitrary nor capricious.

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 a Student with a Disability, 48 Ed Dept Rep 532,Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No.15,836). Respondent’s superintendent avers that, subsequent to the district’s residency determination, the children’s mother requested that Luke and Natalie’s school records be transferred to the Pleasantville Union Free School District where she apparently has enrolled them. Petitioner submits no evidence to refute that assertion. Consequently, this appeal is academic.

Even if the appeal was not moot, it would 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 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 tobe 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 haveonly 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).

In an appeal to the Commissioner, a 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; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882).

In the present case, petitioner alleges that he is a district resident and that he shares visitation of Luke and Natalie with the children’s mother pursuant to a visitation schedule issued by the Westchester County Supreme Court. However, the only evidence submitted with the petition in


support of his allegations is a copy of his driver’s license indicating that he resides at the Chappaqua address. In addition, it appears from the record that petitioner’s wife submitted an affidavit to respondent at testing that, to her knowledge, petitioner resides at the Chappaqua address and that any time her children spend with their father is at that address.

Petitioner fails to provide a copy of the Supreme Court Order establishing the visitation schedule between him and his wife, and his wife’s affidavit includes no details on the terms of the visitation. Therefore, petitioner has not established that the children’s time is essentially divided between the two households, and residency is, thus, determined by the traditional test of physical presence in the district and intent to remain there. Respondent’s substantial surveillance evidence supports the finding that Luke and Natalie reside with their mother outside the district.

Petitioner has offered no explanation of why his children were never observed to be physically present at his Chappaqua address. Therefore, petitioner has failed to meet his burden of proving that his children reside with him at the Chappaqua address. Based on the record before me, I cannot find respondent’s determination that the children are not district residents to be arbitrary or capricious and the appeal must be dismissed (see, e.g.,Appeal of King, 53 Ed Dept Rep, Decision No. 16,522; Appealof Lavelanet, 39 id. 56, Decision No. 14,171).

Nevertheless, I note that petitioner retains the right to apply to the district for admission of his children should circumstances change (Appeal of P.E., 45 Ed Dept Rep148, Decision No. 15,286).