Decision No. 18,323
Appeal of J.B., on behalf of his children, from action of the Board of Education of the Phoenix Central School District regarding residency.
Decision No. 18,323
(August 9, 2023)
Ferrara Fiorenza, PC, attorneys for respondent, Lindsay A.G. Plantholt, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Phoenix Central School District (“respondent”) that his children (the “students”) are not district residents. The appeal must be dismissed.
Prior to the events leading to this appeal, the students lived within the district and attended respondent’s schools. In March 2022, a “community member” asserted to the district that petitioner had admitted that he lived outside of the district. The individual further asserted that petitioner claimed to reside at his parents’ home within the district (the “in-district address”) “so that they don’t have to pay tuition.” Subsequently, in October 2022, one of the students handed in paperwork identifying his home address as a location outside of the district (the “out-of-district address”). When asked by the staff member for his current address, the student identified the out-of-district address but then “corrected himself” by asserting that he lived within the district. The student, however, was unable to identify the street name or number associated with this address.
Based on this information, respondent’s superintendent contacted the students’ mother by telephone on or about November 9, 2022. The students’ mother indicated that the students went back and forth between the in-district and out-of-district addresses. She asked the superintendent if she could “pay tuition” for the students so that they could remain in respondent’s district. The superintendent indicated that the district did not allow non-resident students to attend its schools.
Approximately thirty minutes later, petitioner called the superintendent, similarly asserting that the students resided at both the in-district and out-of-district addresses. Petitioner indicated that he had separated from the student’s mother and lived with his parents at the out-of-district address. The superintendent explained to petitioner that the students could have only one legal residence and that the district might take further steps to confirm their residency.
Thereafter, respondent conducted a residency investigation. A search of public records revealed that the in-district address was owned by petitioner’s parents, the students’ grandparents. It also revealed that, in 2016, petitioner and the student’s mother sold a home located in the district and purchased the out-of-district address. Respondent also engaged the services of an investigator, who conducted eight days of surveillance at both the in-district and out-of-district addresses in December 2022. On five of these occasions, the investigator observed an individual enter a vehicle registered to petitioner and the students’ mother, depart the out-of-district address, and drive the students to the in-district address, at which time they boarded the school bus. The investigator concluded that the students lived with petitioner and the student’s mother at the out-of-district address.
In a letter dated December 21, 2022, respondent notified petitioner of its determination that the students were not district residents and, therefore, would be excluded from its schools as of January 27, 2023. This appeal ensued. Petitioner’s request for interim relief was denied on January 24, 2023.
Petitioner asserts that the students spend “50% of their time” with him at the in-district address. He further asserts that the children also spend “2-3” days each week at the out-of-district address with their mother. Petitioner requests a determination that the students are residents of the district entitled to attend its schools without payment of tuition.
Respondent contends that petitioner has not met his burden of establishing that the students reside at the in-district address. Respondent argues that its surveillance evidence demonstrates that the students live at the out-of-district address.
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).
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).
Petitioner asserts that he and the students’ mother have a “complicated marriage” whereby the students’ mother resides at the out-of-district address and he resides at the in-district address. He further asserts that this arrangement has not been memorialized in a custody or co-parenting agreement. The students’ grandfather, the owner of the in-district address, submits an affidavit stating that the students reside there “2-3 days a week.” Petitioner’s argument amounts to a claim that the students’ time is essentially divided between the in- and out-of-district addresses.
This explanation is contrary to respondent’s surveillance evidence. On five out of eight days, the investigator observed the students being driven from the out-of-district address to the in-district address in the early hours of the morning. By contrast, only once did the students appear to have spent the night at the in-district address. In light of this evidence, petitioner’s explanation that the students spend half of their time at the in-district address is “possible, but not probable” (Appeal of Lajuett, 60 Ed Dept Rep, Decision No. 17,919; see also Appeal of Keating, 59 Ed Dept Rep, Decision No. 17,744; Appeal of Allen, 59 id., 17,726). Respondent’s determination is further supported by the mother’s inquiry as to whether she could pay non-resident tuition, the unsolicited report from the community member, and the interaction between the student and the staff member regarding his address.
Accordingly, I cannot conclude that respondent’s determination was unreasonable.
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 Both students attended middle school at the time of these events.
 Surveillance was conducted before dawn, which likely precluded the investigator from observing the identity of the driver(s).
 Petitioner also submits copies of utility bills, cable bills and a credit card statement addressed to his name at 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 in light of the evidence described herein, including the surveillance evidence (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).
 For purposes of this decision, I have assumed, as petitioner asserts, that he resides at the in-district address.