Decision No. 14,171

(July 28, 1999)

MILLS, Commissioner.--Petitioners, Louis P. and Darrah D. Lavelanet, appeal a determination by the Board of Education of the Baldwin Union Free School District ("respondent") that their daughter, Daphnee J. Lavelanet, is not a resident of respondent's district. The appeal must be dismissed.

Petitioner Louis P. Lavelanet resides in Baldwin, within respondent's district. Petitioner Darrah D. Lavelanet resides in Hempstead, within the Uniondale Union Free School District. At an unspecified time prior to the beginning of the 1996-97 school year, petitioners assert that they entered into an agreement of joint physical and legal custody of their children, Daphnee and Jean Phillippe Lavelanet. Petitioners contend that Daphnee lives with each parent half of the time, and that the parents share equally in all expenses for Daphnee such as food, shelter, clothing and medical bills. According to the alleged custody arrangement, Daphnee resides with her father Monday after 3:00 p.m. until Friday at 6:00 p.m., and then resides with her mother from Friday after 6:00 p.m. through the weekend. Petitioners state that each parent claims one child as a dependent on her or his tax return, with Mr. Lavelanet claiming Daphnee, and neither parent pays child support because each parent has physical custody of the children for one-half of the time.

Daphnee was enrolled in respondent's school district in September 1996, and completed fifth grade in 1998. In December 1997, and January, May and June 1998, respondent conducted a surveillance of petitioners' residences during a series of weeks. Respondent presents investigation reports indicating that on 19 days of surveillance, the investigator observed Ms. Lavelanet bringing Daphnee to Mr. Lavelanet's house in Baldwin to catch the bus on 18 days, and one day Ms. Lavelanet took Daphnee directly to school. Of these 19 occasions, 7 were Mondays when Daphnee might be returning from residing with her mother in accordance with the alleged custody agreement, but the remaining instances were weekdays when Daphnee was purportedly living with her father in Baldwin. The investigation reports did not reflect any occasion when Daphnee was not driven to Mr. Lavelanet's house to catch the school bus. Respondent also presents an affidavit from Daphnee's bus driver for the 1997-98 school year, who states that she observed Ms. Lavelanet driving Daphnee to the bus stop on practically a daily basis. Although on a few occasions Daphnee was already at the Baldwin residence when the bus arrived, the bus driver states that Daphnee said her mother drove her to her father's residence in the early morning.

On May 21 and July 1, 1998, respondent issued exclusion letters, advising that respondent had determined that Daphnee was not a resident of respondent's district. The exclusion was stayed, however, because Ms. Lavelanet requested a meeting with school officials to discuss this determination. A meeting was held on July 8, 1998, and Ms. Lavelanet told school officials that she wanted her daughter to attend respondent's school because it was a better school district. When confronted with the surveillance results, Ms. Lavelanet made a statement to the effect that she did not do things by the book but she did not think the school would be so strict.

On July 9, 1998, respondent issued its determination that Daphnee was not a district resident, and would be excluded from its schools effective July 1, 1998. This appeal ensued. Petitioners' request for interim relief was granted on August 14, 1998.

Petitioners contend that they share legal and physical custody of Daphnee, and that Daphnee is a resident of respondent's district by virtue of her part-time residence with Mr. Lavelanet. They request a determination that Daphnee is a resident of respondent's district and is entitled to attend respondent's school without payment of tuition.

Respondent contends that Daphnee actually resides with her mother outside respondent's district, and that Daphnee is thus not a resident of the district. In addition to the surveillance reports and the affidavit of the bus driver, respondent also presents an affidavit by one of Daphnee's teachers to show that Ms. Lavelanet has been the primary parent for making educational decisions on behalf of her daughter. The affidavit states that, during a three-month period in 1997, the teacher had approximately 52 contacts with Ms. Lavelanet, but only one contact with Mr. Lavelanet. The teacher also states that, in response to an inquiry to Ms. Lavelanet as to whether Daphnee knew her address so that she could practice writing it, Ms. Lavelanet replied in writing that Daphnee knew her address, specifying the Hempstead address.

The appeal must be dismissed. Education Law "3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Morgan, 38 Ed Dept Rep 207, Decision No. 14,016; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Cortes, 37 id. 114, Decision No. 13,818). Residence for purposes of "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Morgan, supra; Appeal of Cortes, supra; Appeal of Helms, 36 Ed Dept Rep 95, Decision No. 13,668). Where a child's parents live apart, the child can have only one legal residence (Appeal of Plesko, 37 Ed Dept Rep 238, Decision No. 13,850). Where a court order awards joint legal custody to both parents, and the child's time is essentially divided between two households, it is the parents' prerogative to designate the child's residence for education purposes (Appeal of Razzano, 38 Ed Dept Rep ___, Decision No. 14,142; Appeal of Cortes, supra).

In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Razzano, supra; Appeal of Plesko, supra). Petitioners' conclusory statements that they share joint custody of Daphnee, that she resides with each parent fifty percent of the time, and petitioners have designated the Baldwin address as her residence for education purposes, are the only proof submitted by petitioners to support their claim that Daphnee is a resident of respondent's district. Petitioners did not produce a copy of their alleged custody agreement.

I have previously held that where a court awards joint custody of a child and the child's time is essentially divided between two households, the parents may designate the child's residence (Appeal of Cortes, supra). However, in this case, I find that petitioners have failed to sustain their burden of establishing either that they have a joint custody arrangement, or that pursuant to such an agreement, Daphnee actually divides her time between the two households. In the absence of such proof, I cannot find that petitioners are entitled to designate Baldwin as her residence for education purposes. Rather, the child's residency must be determined by examining the traditional residency factors, physical presence as an inhabitant in the district and an intent to reside in the district (Appeal of Razzano, supra; Appeal of Dimbo, supra).

Respondent's surveillance results provide compelling evidence that Daphnee resides with her mother in Hempstead, outside respondent's district. Respondent's investigator conducted surveillance on 19 random school days between December 8, 1997 and June 18, 1998. On all but one of those occasions, the investigator observed Ms. Lavelanet drive her daughter to the Baldwin address to catch the bus, and on the other occasion Ms. Lavelanet drove her daughter directly to school. Respondent also presented an affidavit from the bus driver, who stated that Ms. Lavelanet drove Daphnee to the Baldwin address practically every morning, and that Daphnee had confirmed this to the bus driver. The record further reflects that Ms. Lavelanet told Daphnee's teachers that Daphnee's address was Hempstead. Petitioners have offered no proof to counter respondent's surveillance and affidavit evidence, explain why Ms. Lavelanet dropped Daphnee off to catch the bus on days other than Monday, or otherwise explain why Ms. Lavelanet was consistently dropping Daphnee off at the Baldwin address on mornings when Daphnee was purportedly living with her father. Petitioners presented no proof of any specific dates when Daphnee was in fact living with her father in accordance with the purported joint custody agreement, and the facts in the record belie the assertion that Daphnee resides with her father (Appeal of Allen, 35 Ed Dept Rep 112, Decision No. 13,482.)

On the basis of the evidence in the record before me, I find that petitioners have failed to sustain their burden of establishing that they have a joint custody arrangement or that, pursuant to such an arrangement, Daphnee essentially divides her time between the two households (Appeal of Razzano, supra). Thus, it was reasonable for respondent to conclude that Daphnee resides outside of respondent's district and is not entitled to attend the district's schools tuition-free.

THE APPEAL IS DISMISSED.

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