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Decision No. 16,819

Appeal of J.O., on behalf of her children S.O., E.O., D.O., S.O., and J.O., from action of the Board of Education of the Ardsley Union Free School District regarding residency.


Decision No. 16,819

(August 24, 2015)

Robert M. Tudisco, Esq., attorney for petitioner

Shaw, Perelson, May & Lambert, LLP, attorneys for the respondent, Margo L. May, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Ardsley Union Free School District (“respondent”) that her children, S.O., E.O., D.O., S.O. and J.O. (the “students”), are not district residents.  The appeal must be dismissed.

Petitioner’s children have been attending school within respondent’s district since 2011 when petitioner and her husband moved from Mount Vernon to an apartment in Dobb’s Ferry within the school district.  In June 2014, petitioner and her husband apparently separated.  He moved back to Mount Vernon (the “out-of-district address”) and petitioner eventually rented an apartment in Ardsley (the “in-district address”).  Questions as to the students’ residency arose in February or March of 2015, based on statements that J.O. made to his kindergarten teacher.  Respondent’s business administrator/designee for determining residency (“business administrator”) states that those statements, coupled with the fact that the students are driven to and from school instead of receiving transportation services, served as a “red flag” with regard to their residency.  Therefore, the district commenced an investigation into petitioner’s residence.

Surveillance was conducted at the out-of-district address on eleven mornings from March 11, 2015 through March 26, 2015. On five mornings, between 6:00 a.m. and 8:00 a.m., petitioner’s vehicle was in the driveway and petitioner was seen leaving the out-of-district address with one or more of her children, who subsequently attended school on those days. 

By letter dated April 7, 2015, the business administrator notified petitioner that the district had reason to believe that her children were not district residents and, therefore, were not entitled to attend respondent’s schools without the payment of tuition.  Petitioner was provided an opportunity to submit documentation by April 15, 2015, regarding the students’ right to attend respondent’s schools.  Petitioner submitted a lease, a landlord affidavit, a January 2015 electric bill and a February 2015 water bill.  Thereafter, the business administrator requested that petitioner submit additional information; specifically, the landlord’s contact information and more recent utility bills that showed the actual utility usage.  Apparently the bills submitted previously had the utility usage blacked out.  In response, petitioner submitted March 2015 electric and water bills.  I note that the copies of these bills, that are attached to the petition, have the amount owed blacked out. 

According to both parties, by letter dated April 22, 2015, the district’s business administrator notified petitioner that the students would be excluded from respondent’s schools as of May 1, 2015.  However, neither party submits a copy of the letter.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 8, 2015. 

Petitioner asserts that she and her children reside at the in-district address and, therefore, her children are entitled to attend respondent’s schools without payment of tuition.  She further contends that respondent’s residency determination is arbitrary and capricious. 

Respondent contends that petitioner has not met her burden of proof to establish residency in its district.

I must first address a procedural matter.  After respondent submitted an affidavit in opposition to petitioner’s request for interim relief, petitioner submitted a reply affirmation by her attorney, along with her own affidavit and several additional exhibits.  Although served on respondent before respondent served its answer, it appears that petitioner meant this submission to serve in the nature of a reply.  (see Appeal of M.S., 47 Ed. Dept Rep 396, Decision No. 15,733)  Respondent does not object to the submission and, moreover, had the opportunity to address it.  Petitioner also subsequently submitted a reply to respondent’s answer.  I note, however, that a reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed both replies, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in respondent’s affidavit in opposition to petitioner’s request for interim relief or in its answer.  For example, petitioner’s boarding pass, money order receipts, and New York State Insurance Identification Cards – attached as exhibits - were all available at the time the petition was filed and were not submitted with the petition and, consequently, have not been considered.

Education Law §3202(1) provides, in pertinent part, as follows:

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 §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 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. 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).

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 Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner alleges that she and her husband are separated and that her children reside with her at the in-district address.  She states that, pursuant to a separation agreement, the students’ father frequently picks them up from school and drives them to the in-district residence and that, on occasion, he drives them to school.  She states that the students stay overnight at their father’s house - the out-of-district residence - one or two times each week.  She further states that, during the past six months, the students have been spending more time with their father – specifically, when he picks them up from school and takes them to after school activities - because she has been spending time late in the evenings with a family member who is ill.  She also states that, from March 13, 2015 through March 23, 2015, the children stayed with their father while she was traveling out of the country on business.

Although petitioner states that she and her husband have separated and, pursuant to mutual agreement, petitioner is the custodial parent, I note that, while not dispositive, petitioner has not submitted any documentation in support of her assertions relating to custodial arguments.  In any event, upon review of the record, I cannot conclude that petitioner has established that she and her children reside in respondent’s district.

Surveillance was conducted at the out-of-district address on eleven mornings from March 11, 2015 through March 26, 2015.  Although petitioner explains that she was out of the country from March 13, 2015 until March 23, 2015, the surveillance reveals that on March 11, 12, 24, 25 and 26, when she was not traveling, petitioner was observed early in the morning at the out-of-district residence.  On each day, petitioner’s vehicles were located there and she was observed leaving with one or more of her children to drive them to school in respondent’s district.  Petitioner provides no explanation for her presence at the out-of-district address on those dates.

In support of her claim of residency, petitioner submits a lease agreement, landlord affidavit and utility bills.  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 White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).  Moreover, the utility bills submitted show either limited usage or have that information blocked out and do not establish petitioner’s physical presence at the in-district address.  Therefore, the utility bills are not persuasive evidence supporting petitioner’s claim of residency.  I also note that, although the landlord’s affidavit attests to the existence of the lease, he avers only “upon information and belief” that petitioner actually resides at the leased address.  Thus, I ascribe no weight to that affidavit.  Petitioner’s documentary evidence does not overcome the surveillance evidence submitted by respondent.  On this record, I cannot conclude that petitioner has met her burden of proof or that respondent’s decision was arbitrary, capricious or unreasonable.

In light of the above, I need not address petitioner’s remaining contentions.  Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her children’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.