Decision No. 18,316
Appeal of K.R. and T.R., on behalf of their children, from action of the Board of Education of the City School District of the City of Watervliet regarding residency.
Decision No. 18,316
(August 2, 2023)
Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel
ROSA., Commissioner.--Petitioners appeal a determination of the Board of Education of the City School District of the City of Watervliet (“respondent”) that their two daughters (the “students”) are not district residents. The appeal must be sustained.
The record reflects that petitioner T.R. (the students’ father) and petitioner K.R. (the students’ mother) separated prior to the events giving rise to this appeal. After separating, petitioner T.R. remained within the district (the “in-district address”) while petitioner K.R. relocated outside of the district (the “out-of-district address”).
Respondent conducted surveillance over multiple days in January 2023. On four days, an investigator observed petitioner K.R. or her boyfriend leave the out-of-district address with one or both students. On three days, petitioner observed petitioner K.R. at the out-of-district address but did not observe the students. Respondent thereafter determined that the students resided with petitioner K.R. at the out-of-district address and excluded them from the district by letter dated January 27, 2023. This appeal ensued. Petitioners’ request for interim relief was granted on February 8, 2023.
Petitioners contend that the students reside with petitioner T.R. at the in-district address. Petitioners seek a determination that the students are residents of respondent’s district entitled to attend its schools tuition-free.
Respondent, relying primarily upon its surveillance evidence, contends that the students reside with their mother at the out-of-district address.
Following commencement of this appeal, Family Court, Albany County issued a temporary order of custody dated May 1, 2023 that awarded joint legal custody of the students to petitioners and “primary physical custody” to petitioner T.R. (the “court order”).
Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 ). “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 ; 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 (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Helms, 36 id. 95, Decision No. 13,668). In cases where parents have joint custody and the child’s time is essentially divided between the parents’ respective households, the parents may designate the child’s residence for purposes of Education Law § 3202 (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; Appeal of Cortes, 37 id. 114, Decision No. 13,818). However, in the absence of proof that the child’s time is indeed divided between both households, the child’s residency must be determined by the traditional test requiring physical presence in the district and intent to remain (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).
Where a court of competent jurisdiction has legally transferred custody of a child, the Commissioner will accept the court’s order as determinative of the child’s residency for purposes of Education Law § 3202, absent proof that the child does not, in fact, reside with the court-ordered custodian (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Naab, 48 id. 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801). Any objection to the legitimacy of a court-ordered transfer of custody should be made before the court itself, not in an appeal to the Commissioner of Education (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Naab, 48 id. 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).
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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
The court order, which postdates the surveillance conducted by respondent, provides petitioner T.R. with physical custody of the students. As such, I accept the court order as determinative of the students’ physical presence (Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16,933 [accepting court order as determinative that provided petitioner with “primary physical custody of both children ... [and] shared legal custody”]). Even if respondent’s residency determination was reasonable in February 2023, its surveillance evidence is no longer relevant in light of the superseding court order (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995 [refusing to credit “respondent’s evidence, including surveillance” that “predate[d] ... court orders”]; Appeal of Crawford, 48 Ed Dept Rep 92, Decision No. 15,801 [same]).
However, I remind petitioners that, the court order notwithstanding, the students must actually reside with petitioner T.R. to be considered district residents. Thus, respondent is free to collect further evidence through surveillance, a home visit, or other means (see Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16, 933). Until that time, however, respondent must admit the children to its schools (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Clemons, 52 id., Decision No. 16,407).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent allow the students to attend the City School District of the City of Watervliet without payment of tuition.
END OF FILE
 While petitioners identified a third child in the caption of the petition, respondent does not seek to exclude this child as a non-resident. Accordingly, this decision pertains only to the two students discussed herein.
 The probative value of the observation on one of these days, January 26, 2023, is diminished as the students did not attend school that day.
 The record does not contain a copy of this letter.