Decision No. 13,460

(August 16, 1995)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's determination that his sons are not residents of the Monroe-Woodbury Central School District ("respondent"). The appeal must be sustained in part.

Petitioner resides in the Greenwood Lake Union Free School District. He is divorced from the students' mother, who resides in respondent's school district. Pursuant to a divorce decree, the mother was awarded legal custody of the children. However, the students apparently live with petitioner a substantial amount of time. Mark and Darryl have attended respondent's schools for their entire educational careers.

Respondent's superintendent held a residency hearing on April 10, 1995. On April 11, 1995, a school district social worker visited the workplace of petitioner's former wife and asked her to sign a statement relinquishing full parental control and custody of her sons. She signed the document, which she later qualified in a letter to respondent's superintendent dated April 17, 1995, stating that there had never been a change in the court ordered custody. By letter dated April 12, 1995, respondent's superintendent notified petitioner that his sons were not residents of the district and would not be permitted to attend the district's schools after July 1, 1995. This appeal ensued.

Petitioner alleges that his sons are residents of respondent's district and should be permitted to attend its schools without the payment of tuition. He also alleges unethical behavior on the part of school district officials. Respondent contends that its determination of residency was appropriate.

Education Law '3202(1) provides in pertinent part:

The purpose of the statute is to limit the obligation of school districts to provide tuition-free education to those students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446).

For purposes of this provision, a child's residence is presumed to be that of his parents (Appeal of Forde, 29 Ed Dept Rep 359; Appeal of Delgado, 24 id. 279; Appeal of Shelmidine, 22 id. 206). In cases where a child's parents live apart, the child can have only one legal residence (People ex rel. The Brooklyn Children's Aid Society v. Hendrickson, et al., 54 Misc 337, 104 NYS 122, aff'd 196 NY 551; Appeal of Manning, 24 Ed Dept Rep 33). Where a child's parents are divorced and a court awards custody of the child to one parent, as in the case before me, the child's residence is presumed to be with the custodial parent.

The presumption that a child resides with the custodial parent, however, is rebuttable. In determining whether that presumption is rebutted, a board of education must consider several factors, including the extent of time the child actually lives in the district (Vaughn, et al. v. Bd. of Ed., 64 Misc 2d 60, 314 NYS2d 266) and the intent of the family members to have the child reside in the district (Matter of Richards, 25 Ed Dept Rep 38; Appeal of Whiteman, 24 id. 337). In those cases where the child's time is essentially divided between two separate households and the parents both assume day-to-day responsibility for the child, the determination of the child's residence must rest ultimately with the family. In such cases, the custodial parent may designate the child's residence for purposes of Education Law '3202.

Section 100.2(y) of the Regulations of the Commissioner of Education establishes the procedures a board of education must follow in determining the residency of a student. Pursuant to that regulation, a board is required to afford a student or a person in parental relationship to a student an opportunity to be heard on the issue of residence. Where the proper procedures have been followed, a district determination as to the residence of a child will not be set aside unless it is shown to be arbitrary or unreasonable (Matter of Buglione, 14 Ed Dept Rep 220; Matter of Wadas, 21 id. 577).

The record is clear that Darryl returned to his mother's residence within the district on April 22, 1995. Accordingly, respondent's determination that Darryl is not a resident must be overturned. It is undisputed, however, that Mark continues to live with petitioner, who resides outside of respondent's school district. Moreover, petitioner admits in his petition that Mark lives with him and intends to remain for the foreseeable future. Since residence is based upon an individual's physical presence within the district and an intention to remain (Appeal of Anthony S., 32 Ed Dept Rep 93; Appeal of Bonfante-Ceruti, 31 id. 38), I find that respondent correctly concluded that petitioner's son, Mark, does not reside in the Monroe-Woodbury Central School District. However, residency status can change and in the event that Mark no longer exclusively lives with petitioner, his status should be reevaluated by respondent.

I am compelled to comment on respondent's role in this case. I find respondent's decision to send a school district representative to the workplace of petitioner's former wife with a request to execute a custody document highly questionable. While it appears that petitioner's former wife may have made statements allocating parental responsibility to petitioner, those statements are not a basis to determine that a change in legal custody has occurred. The record indicates that although petitioner attended the district's residency hearing on April 10, Mark and Darryl's mother was neither invited nor present at that meeting. The record also seems to indicate that while petitioner's former wife was awarded custody of her sons, there may have been disputes between her and petitioner concerning them. If respondent had questions concerning the living arrangements Mark and Darryl's parents had made, respondent should have invited both parents to the residency hearing to discuss the issue.

Moreover, in family situations such as this one, where liberal custody arrangements are in place between divorced parents, it is not appropriate for a school district to interfere in those determinations. Although I am aware that the school district is attempting to limit its educational services to district residents, I am troubled by its decision to send a district employee to a parent's workplace in an effort to secure the parent's signature on a document which was apparently intended to provide the basis for removing her children from the district's schools. This type of action by a school district is completely inappropriate and should not be repeated.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent Board of Education of the Monroe-Woodbury Central School District admit petitioner's son, Darryl, to the schools of the district without payment of tuition.

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