Decision No. 17,738
Appeal of ROBERT DEL FRANCO, on behalf of his daughter MADISON, from action of the Board of Education of the Brewster Central School District regarding residency.
Decision No. 17,738
(August 22, 2019)
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Neelanjan Choudhury, Esq., of counsel
ELIA., Commissioner--Petitioner appeals the determination of the Board of Education of the Brewster Central School District (“respondent”) that his daughter (“the student”) is not a district resident. The appeal must be dismissed.
The student has attended respondent’s schools since September 2016. Petitioner, the student’s father, lives within the district at the in-district address, which was provided to respondent as the student’s address. The student’s mother lives outside the district.
During the summer of 2018, respondent required verification of residency to be provided for all students prior to registration for the 2018-2019 school year. At that time, petitioner was unable to provide proof that he had custody of the student, and, though petitioner was allegedly living with the student’s grandparents at the in-district address, the grandparents did not sign an affidavit averring that petitioner had custody of the student.
Respondent hired an investigator to determine where the student resided. The investigator conducted surveillance on February 1, 5, 7, and 11, 2019. On February 1, 2019, no activity was observed at the in-district address, and the out-of-district address was not surveilled. On the morning of February 5, the investigator observed the student’s mother drive to the in-district address, turn around in the driveway, and wait until the bus arrived, at which time the student exited the vehicle and boarded the school bus. The investigator then followed the student’s mother as she drove to the out-of-district address. On February 7 and February 11, the investigator observed the student’s mother and the student leave the out-of-district address and drive to the in-district address, where the student boarded the school bus. The investigator then observed the student’s mother return to the out-of-district address on both dates.
By letter dated March 13, 2019, respondent’s residency officer informed petitioner that “since [he] ha[d] not provided residency verification documents,” a residency hearing was scheduled for March 27, 2019. On March 27, 2019, the hearing was held with petitioner and the student’s mother in attendance. At the hearing, petitioner and the student’s mother stated that the student stayed with her mother at the out-of-district address on weekdays and with petitioner at the in-district address on weekends. Petitioner and the student’s mother indicated that this arrangement was necessitated by petitioner’s work schedule.
By letter dated March 27, 2019, respondent’s residency officer notified petitioner that the student was not a district resident and that the student would be disenrolled from respondent’s schools effective April 5, 2019. This appeal ensued. Petitioner’s request for interim relief was granted on April 12, 2019.
Petitioner claims that the student has “resided within the Brewster Central School District for all 7 years of her life,” and that petitioner and the student’s mother may designate respondent’s district because they share joint custody of the student and the student resides at the out-of-district address with her mother for half of each week and at the in-district address with petitioner for half of each week. In support of his petition, petitioner submits a document entitled “Stipulation of Settlement, Custody and Parenting Time” dated March 30, 2019, that indicates that petitioner and the student’s mother “shall have joint legal custody of the ... child” and that “for the purposes of educational decisions, [petitioner’s] residence in Brewster shall be the child’s residence.” Petitioner also submits his form W-2 Wage and Tax Statement for 2018, paystub dated February 11, 2019, 1095-B IRS health coverage form for 2018, and a copy of his New York State driver’s license. All of these documents reflect petitioner’s address as the in-district address.
Respondent contends that the appeal must be dismissed because petitioner has not met his burden of demonstrating that the student’s time is essentially divided between the in-district address and the out-of-district address. Respondent asserts that the student is not a district resident and, therefore, respondent’s decision to exclude the student from its schools was neither arbitrary nor capricious. Respondent also asserts that the student’s mother has not relinquished care, custody, and control of the student to petitioner.
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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). “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 Powell, 57 Ed Dept Rep, Decision No. 17,320). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320).
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 S.L., 57 Ed Dept Rep, Decision No. 17,187). 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 S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of T.P., 45 id. 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935). 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 S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).
A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
Petitioner has not met his burden of proving that the student resides within respondent’s district. As proof, petitioner submits a W-2 Wage and Tax Statement for 2018, a check made payable to petitioner, and an Internal Revenue Service Form 1095-B, each of which identifies petitioner and the in-district address. While this documentary evidence bearing petitioner’s name and the in-district address is entitled to some weight, it is not dispositive where contrary surveillance evidence exists, particularly in light of the fact that the in-district address appears to be that of petitioner’s parents (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636). Respondent’s surveillance evidence indicates that the student’s time is not “essentially divided” between households but, rather, that the student spends the majority of her time with her mother outside of the district (see Appeal of Leach, Jr., 58 Ed Dept Rep, Decision No. 17,653). Indeed, according to the record, petitioner and the student’s mother verbally confirmed this arrangement during the residency hearing. Petitioner did not submit a reply or otherwise respond to this allegation. While petitioner has provided evidence that he resides at the in-district address, the only proof he has provided of the student’s residency is a custody agreement dated three days after the residency hearing was held. Though this document purports to prove that the student’s parents share joint legal custody of the student, it does not identify what days the student purportedly resides with petitioner in the district and was not available for respondent’s consideration at the residency hearing. I note in this respect that petitioner merely asserts in the petition that he and the student’s mother “[h]istorically” shared “joint legal custody” of the student, and that physical custody is determined “as mutually agreed upon.” Not only does this not suffice to establish the student’s physical presence at the in-district address, it also contradicts petitioner’s and the student’s mother’s admission that the student spent the majority of her time at the out-of-district address. Therefore, I find that, on this record, petitioner has not met his burden of proving that the student is a district resident.
Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of the student in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 In an affidavit in opposition to petitioner’s request for interim relief, respondent’s residency officer acknowledges that the form filled out by petitioner “mistakenly refers to the process as ‘Re-registration,’” rather than “Residency Verification.” The record includes a link to respondent’s “Residency Verification” webpage, available at https://www.brewsterschools.org/residency-verification/. The webpage states that as “there are limited opportunities to continuously affirm a family’s residency status once a student is enrolled ... families are asked to ... submit documentation described on our Residency Verification Form.” Although petitioner does not raise any objections or arguments with respect to this practice, I note that, in July 2018, the State Education Department (“Department”) issued guidance on the practice of mandatory “re-registration” wherein all parents and guardians are required to “re-register” their students prior to the start of school. The Department’s guidance states, in pertinent part, as follows: “While the [Commissioner’s] regulations [8 NYCRR §100.2(y)] recognize that school districts may make determinations throughout the school year that certain individual students are no longer district residents subsequent to initial enrollment or re-entry, the regulations do not contemplate the practice ... of requiring all students to ‘re-register’ with the district regardless of whether a question exists as to the residency status of each individual student (emphasis omitted).” The Department’s guidance is available at: http://www.nysed.gov/sites/nysed/files/residencyguidance-memo.7-19-18.pdf. While respondent may take appropriate steps to update and/or verify student information, as needed, respondent should immediately review its policies and procedures with respect to enrollment and registration to ensure compliance with applicable laws and regulations, as well as the Department’s guidance.
 The date “3/30/13” is written beneath petitioner’s signature on the document. However, since the document itself is dated March 30, 2019, the date written below the student’s mother’s signature is “3/30/19,” and the dates of notarization are both March 30, 2019, I will presume that the actual date of execution was March 30, 2019.