Decision No. 12,999

(September 2, 1993)

Long Island Advocacy Center, Inc., attorneys for petitioner, Kelly Ann Poole, Esq., of counsel

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her son, Justin Sacripante, is not a resident of the Sewanhaka Central High School District ("district"). The appeal must be sustained.

In September 1989, petitioner enrolled Justin at the New Hyde Park Memorial High School, stating that he resided with her in the district at the home of her elderly mother at 1027 North 5th Street, New Hyde Park. Prior to that, petitioner had lived outside the district with her husband at 87-50 204th Street, Hollis, New York. In December 1990, petitioner's mother passed away. Petitioner asserts that she continued to reside in her mother's home.

In July 1992, respondent conducted a residency hearing pursuant to 8 NYCRR '100.2(y) after district officials discovered that Justin's father lived outside the district, in Hollis, Queens. At the hearing, petitioner testified that she and her husband had separated three years ago and explained that Justin visited his father on weekends and occasionally on week nights. Petitioner also introduced documentary evidence including her voter registration card, library card, LILCO statement, water bill, payroll stub and bank statement showing her residence to be within the district. The hearing officer concluded that petitioner and her son were, indeed, residents of the district, but advised that because of the difficulty in determining residency, periodic home visits would be made.

In February 1993, following eleven surveillances, respondent held a second residency hearing. In support of its case, respondent produced an unsworn surveillance report showing that petitioner was twice seen leaving the Queens address with her son and stopping at the New Hyde Park address before proceeding to the high school. On six occasions, petitioner and her son were not seen leaving the New Hyde Park address on mornings when, according to respondent, the student was present at school for his first period class. On two other occasions, petitioner was seen leaving her work place in Lake Success, New York, and returning to the Queens address. At the hearing, petitioner introduced documentary evidence consisting of her driver's license, voter registration card, library card, New York State insurance identification card, electric bill, water bill, payroll stub, unemployment application, W-2 statement, general tax levy statement, school tax levy statement, deed to the New Hyde Park home, CIGNA explanation of benefits and copies of 12 letters sent to her at the New Hyde Park address. Petitioner was unable to explain, however, why investigators had not seen her at the New Hyde Park address on eight mornings. She suggested that the investigators either surveilled her at the wrong address or conducted their surveillance on weekends when her son frequently stayed in Queens.

In a decision dated February 8, 1993, the hearing officer concluded that neither petitioner nor her son were residents of the district. Petitioner commenced this appeal on February 25, 1993 and requested interim relief, which was granted on March 5, 1993.

Residency is a determination based upon an individual's physical presence as an inhabitant within the district and upon the individual's intent to remain (Appeal of Anthony S., 32 Ed Dept Rep 93; Appeal of Bonfante-Ceruti, 31 id. 38; Appeal of Reifler, 31 id. 235). The term residence for purposes of Education Law refers to one's domicile (Appeal of Reifler, id.). While a person may have more than one residence, they may have only one domicile (Matter of Newcomb, 192 NY 316). As the party challenging petitioner's residence, the board of education has the burden of establishing that she and her son do not reside there (Appeal of Kind, 32 Ed Dept Rep 584; Appeal of Lenz, 32 id. 132). Respondent's allegation that the unsworn surveillance report constitutes competent evidence of petitioner's residence is not dispositive, where petitioner has supplied ample documentary evidence that she is a resident of respondent's district. The fact that an investigator may not have seen petitioner leaving the New Hyde Park address on several occasions does not, by itself, rebut what I find to be persuasive documentary evidence that petitioner resides within the New Hyde Park School District.

Under law, petitioner's son is presumed to reside with his parent or legal guardian (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Colas, 32 id. 128). While petitioner and her husband are not legally separated, there is evidence that both parents support the child and exercise control over him. Where the child's time is divided between the two households, the determination of the child's residence rests ultimately with the family (Appeal of Juracka, 31 Ed Dept Rep 282; Matter of Forde, 29 id. 359). Petitioner claims that she lives at the New Hyde Park address and transports her son to school in time for his first period class and shares custody of her son with his father. The hearing officer's determination to the contrary, based wholly upon an unsworn surveillance report indicating that petitioner was not present at the address in the district on several occasions, is equally consistent with petitioner's assertions that she and her husband have a liberal visitation arrangement. Moreover, both petitioner and Justin's father maintain that Justin resides with petitioner. Without persuasive evidence to the contrary, there is simply no basis to conclude otherwise.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Sewanhaka Central High School District immediately admit petitioner's son, Justin Sacripante, to the schools of the district tuition-free.

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