Appeal of M.M., on behalf of his children, from action of the Board of Education of the Alden Central School District regarding residency.

Decision No. 18,631

(August 12, 2025)

Hodgson Russ, LLP, attorneys for respondent, Andrew J. Freedman and Lindsay A. Menasco, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Alden Central School District (“respondent”) that his two children (the “students”) are not district residents.  The appeal must be sustained. 

The record reflects that, prior to 2023, petitioner and the student’s mother resided together at a location outside of the district (the “out-of-district address”).  They separated thereafter, agreeing that the students would reside with petitioner from Monday through Friday at a location within the district (the “in-district address”) and on weekends with their mother at the out-of-district address.

Respondent registered the students in respondent’s district in fall 2023.  During the 2023-2024 school year, school officials were often unable to reach petitioner or the student’s mother by phone or email.  Based on these concerns, respondent surveilled the in-district address on four school mornings in September 2024.[1]  As further explained below, respondent indicates that it did not observe the students at the in-district address.

By letter dated September 23, 2024, respondent informed petitioner that it had reason to believe the students did not reside within the district.  It provided him with an opportunity to submit additional information concerning his residency by Friday, September 27, 2024; if he did not do so, the letter indicated that the students would be excluded effective Monday, September 30, 2024.  Respondent sent this letter to the out-of-district address via certified mail.[2]  Due to an error by the U.S. Postal Service, the letter was sent via regular mail.  As a result, petitioner indicates that the student’s mother “overlooked” the letter.  He further asserts that he only learned of the letter on September 30, 2024 when the high school principal called to inform him of the students’ exclusion.

In a letter to the principal dated October 3, 2024, petitioner complained that he had received inadequate notice prior to the students’ exclusion from school.  Petitioner met with the principal a few days later.  At this meeting, the principal provided a letter explaining the basis for its determination, which included a summary of its surveillance evidence.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 6, 2024.

Petitioner argues that he resides in the district with the students from Monday through Friday with limited exceptions.  He provides an explanation for the students’ presence outside of the district on most of the dates of surveillance.  He seeks a determination that the students are district residents.

Respondent contends that the appeal must be dismissed as moot.  On the merits, respondent contends that the students reside with their mother at the out-of-district address.

First, I must address two preliminary matters.  Due to the error by the post office and the mailing of the September 23 letter to the out-of-district address, petitioner did not receive an “opportunity to submit information concerning the child’s right to attend school in the district” prior to their exclusion (8 NYCRR 100.2 [y] [6]).  Nevertheless, petitioner has had a full and fair opportunity, in his conversations with the principal and on appeal, to present evidence of his residency and respond to the district’s claims.  As such, I decline to sustain and remand the appeal on this basis (Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687; see also Appeal of J.M., 57 Ed Dept Rep, Decision No. 17,145; Appeal of Smythe, 51 id., Decision No. 16,303; Appeal of Butler and Dunham, 50 id., Decision No. 16,103).

Second, respondent contends that the appeal is moot because petitioner has enrolled the students in the school district that serves the out-of-district address.  Following denial of petitioner’s request for interim relief, this was the only public school district where petitioner could enroll his children consistent with the Compulsory Education Law.  Since petitioner continues to seek the students’ admission to respondent’s schools, I decline to dismiss the appeal on this basis (Appeal of D.P., 54 Ed Dept Rep, Decision No. 16,673).

Turning to the merits, 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 submits documentary evidence bearing his name and the in-district address.  He also submits affidavits from the students’ grandparents, who indicate that petitioner and the students reside therein on “weekdays during the school year.”[3]  While respondent submits other documentary evidence associating petitioner with the out-of-district address, this evidence has minimal relevance as petitioner and the student’s mother lived at the out-of-district address prior to 2023.[4]  To the extent petitioner has not updated information such as his voter registration, this is not dispositive under the circumstances (Appeal of Burgess, 57 Ed Dept Rep, Decision No. 17,178; Appeals of Moore, 49 id. 158, Decision No. 15,985; Appeal of Burnett, 42 id. 208, Decision No. 14,825).[5]  Thus, respondent’s case largely centers on its surveillance evidence.

The record, however, does not contain a firsthand account thereof.  The surveillance is described in the principal’s October 8 letter and an affidavit from the president of an investigative company.  Neither of these individuals had personal knowledge of the surveillance; the president merely indicates that she spoke with the colleague who conducted the surveillance.  Given the fact that petitioner seriously contests aspects of these observations, the hearsay assertions of the principal and president are entitled to diminished probative value (Appeal of Celestin, 63 Ed Dept Rep, Decision No. 18,325; see generally Appeal of E.R., 63 Ed Dept Rep, Decision No. 18,309).

Additionally, respondent’s surveillance was limited and inconclusive.  The parties’ divergent explanations of the four school mornings are presented below.

• September 16: respondent indicates that the investigator surveilled the in-district address between 6:00 and 9:00 a.m. but observed no activity.  Petitioner states that he left the in-district address around 8:00 a.m. and picked the students up at the out-of-district address, driving them to school thereafter.[6]
• September 18: respondent reports that the investigator surveilled the in-district address between 6:00 and 9:00 a.m. but observed no activity.  Petitioner indicates that he departed the in-district address around 8:20 a.m. and drove the students to school.  Petitioner further asserts that his brother-in-law, who also resides at the in-district address, departed the in-district address to drive his own children to school around 7:10 a.m.
• September 19: respondent surveilled the in-district address beginning at 6:20 a.m.  “[S]hortly thereafter,” the investigator proceeded to the out-of-district address, where he observed vehicles belonging to petitioner and the students’ mother.  Petitioner admits that his vehicle was parked at the out-of-district address; on that day, however, he asserts that one student walked to school while the other “was picked up … by a fellow student” around 8:20 a.m.  Petitioner submits a signed and notarized statement from the fellow student to corroborate this explanation.
• September 20: respondent surveilled the in- and out-of-district address in the same manner as the preceding day.  Petitioner does not provide a specific explanation as to how his children attended school that day but admits, as with the previous day, that his vehicle was parked at the out-of-district address.

Given the students’ typical departure from the in-district address after 8:00 a.m., the investigator may have missed them on September 19 and 20 as he left at an unspecified time after 6:20 a.m. (Appeal of T.E., 62 Ed Dept Rep, Decision No. 18,190 [observing, under similar circumstances, that it was “equally plausible that [students] were at [an] in-district address and left after the investigator …”]).  Thus, even accepting respondent’s version of events, respondent has only established the students were not present at the in-district address on two school day mornings.  This is insufficient to conclude that they do not reside therein (Appeal of J.R., 61 Ed Dept Rep, Decision No. 18,193; Appeal of J.R., 57 id., Decision No. 17,184). 

While the evidence is close, I find that petitioner has sufficiently demonstrated that he and the students reside at the in-district address.  Respondent did not submit evidence from someone with firsthand knowledge of its surveillance, which, in any event, was limited and inconclusive Appeal of T.E., 62 Ed Dept Rep, Decision No. 18,190; Appeal of Students with Disabilities, 58 id., Decision No. 17,467).   Nothing in this decision shall limit respondent’s authority to establish a more complete picture of the students’ physical presence through additional surveillance.  Until that time, however, respondent must admit the students to its schools (Appeal of J.R., 62 Ed Dept Rep, Decision No. 18,193).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the students to the schools of the district without the payment of tuition.

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