Appeal of B.W., on behalf of his child, from action of the Board of Education of the Elmont Union Free School District regarding residency.

Decision No. 18,615

(August 4, 2025)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Mara N. Harvey, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that his child (the “student”) is not a district resident.  The appeal must be dismissed.

In 2022, the student’s mother registered the student in respondent’s district.  At that time, she indicated that she and the student resided at an address in Elmont, New York (the “first in-district address”).  During the 2023-2024 school year, respondent investigated petitioner’s residency, which included 12 days of surveillance at the first in-district address, a second in-district address, and a residence located outside of the district (the “out-of-district address”).[1]  The investigator did not observe the student at either of the in-district addresses.  By contrast, the student was seen departing from, or returning to, the out-of-district address on seven occasions.

In a letter dated November 6, 2024, respondent notified petitioner of its determination that the student was not a district resident and, therefore, would be excluded from its schools as of November 20, 2024.  The letter also advised petitioner of his right to appeal the decision to an administrative review officer.  Petitioner appealed, and respondent convened a hearing on December 6, 2024.[2]   

By letter dated January 21, 2025, respondent informed petitioner of the hearing officer’s determination that the student resided outside of its district.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 11, 2025.

Petitioner asserts that he and the student’s mother have lived separately since fall 2024.  As a result, he alleges, the student has divided his time between petitioner’s residence (the second in-district address) and his mother’s residence (the out-of-district address).  Petitioner requests a determination that the student is a resident 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 student resides within the district.  Respondent argues that petitioner’s explanation of the student’s living circumstances is refuted by its surveillance evidence, which consistently depicted the student 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 [1991]).  “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 [2004]; 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 claims that the student spends school nights at the second in-district address.  In support thereof, he submits an unsworn, unsigned letter from the student’s mother.  This contradicts the testimony he and the student’s mother provided at the hearing, wherein both claimed that the student typically stays at the second in-district address from Thursday through Monday, at most.[3]  This explanation is also inconsistent with respondent’s surveillance evidence, which depicted the student at the out-of-district address on at least one Monday, Tuesday, Wednesday, and Thursday.  Petitioner did not submit a reply or otherwise seek to explain these inconsistencies.[4]  Thus, the odds that the investigator observed an atypical deviance from the family’s schedule 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).  Accordingly, petitioner has not demonstrated that respondent’s determination was arbitrary or capricious.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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