Decision No. 14,621

(August 13, 2001)

CATE, Acting Commissioner.--Petitioners appeal the determination that their daughters, Patricia and Kelly, are not residents of the West Islip Union Free School District ("district"). The appeal must be sustained.

Petitioner Teufel resides at 372 Arcadia Drive, West Islip, within respondents' district. Petitioner Weik resides at 472 Little East Neck Road, Babylon, outside of the district. Petitioners share legal custody of their daughters pursuant to a judgment of divorce of the Suffolk County Supreme Court. The judgment further provides that the children reside with their mother with reasonable rights of visitation to their father.

Petitioners" daughters have attended school within respondents' district since they entered first grade. At the time of the commencement of the appeal, Patricia was enrolled in sixth grade and Kelly was enrolled in fourth grade.

In or about November 2000, Patricia allegedly told a district official that she lived with her mother. Subsequent thereto, district officials commenced an investigation to determine whether Patricia and Kelly resided in the district.

On three occasions, within the same week in November 2000, the district conducted surveillance at the mother"s out-of-district residence. The surveillance information in the record is not clear. However, it appears that on three occasions, the mother was seen leaving her out-of-district residence with one of her daughters and dropping her off at an address in close proximity to petitioner Teufel"s residence.

On December 1, 2000, respondent superintendent wrote to petitioner Weik and informed her that he did not believe that Patricia and Kelly were district residents and advised her of her right to submit information to the district concerning her daughters" right to attend school in the district.

Petitioners submitted information to respondent superintendent indicating that they share custody of their daughters and that the children spend time in both households. They provided a general schedule and indicated that it varied weekly depending on each child"s activities. They further indicated that daycare is provided by the father"s neighbor or his parents who live within the same neighborhood. Finally, petitioners indicated that the schedule had been somewhat altered recently due to the father"s upcoming remarriage and the need to alter the construction of his home. According to the information provided, it appears that Patricia and Kelly are involved in a number of activities within their father"s community, including church, religious instruction, library services and Girl Scouts.

Thereafter, respondent superintendent wrote to petitioners on February 15, 2001 and informed them that he had determined that Patricia and Kelly were not district residents and that they would be excluded from school as of March 2, 2001. The letter also advised petitioners of their right to appeal the decision to the Commissioner. This appeal ensued. Petitioners" request for interim relief was granted on March 20, 2001.

Petitioners assert that their daughters" time is divided between their respective households and that they have designated the father"s home as their daughters" legal residence and, therefore, their daughters are district residents entitled to attend the district"s schools tuition-free.

Respondents claim petitioners lack standing to appeal, fail to demonstrate a clear right to relief and fail to state a claim for relief. Respondents further submit that their residency determination was rational.

Respondents" argument that the petition must be dismissed because petitioners lack standing to bring this appeal is entirely devoid of merit. The Commissioner"s regulations set forth the process for resolving residency disputes and clearly provide standing to petitioners in this appeal. Under the regulations, when a determination is made that a child is not entitled to attend the schools of a district, a notice of the determination must be provided to the child"s parent or person in parental relation. Such notice must include a statement that the determination may be appealed to the Commissioner (8 NYCRR "100.2[y][4]). There is no dispute that petitioners are the parents of Patricia and Kelly, and in fact, respondents" letter to petitioners dated February 15, 2001 notifies petitioners of their right to appeal the determination to the Commissioner of Education. Accordingly, I will not dismiss the petition for lack of standing.

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 students whose parents or legal guardians reside within the district (Appeal of Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Bogetti, 38 id. 199, Decision No. 14,014). 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 Razzano, 38 Ed Dept Rep 782, Decision No. 14,142; Appeal of Plesko, 37 id. 238, Decision No. 13,850).

In the instant case, petitioners" divorce decree awards joint legal custody of the children to petitioners and provides that the children reside with their mother. Where a child"s parents are divorced and custody of the child is awarded to one parent, the child"s residence is presumed to be that of the custodial parent (Appeal of Petrie, 37 Ed Dept Rep 200, Decision No. 13,842; Appeal of Barron, 31 id. 1, Decision No. 12,545; Appeal of Forde, 29 id. 359, Decision No. 12,319). However, that presumption may be rebutted (Id.).

Moreover, prior decisions of the Commissioner have allowed parents to designate a child"s residence where a child"s time is "essentially divided" between two residences and both parents assume responsibility for the child (Appeal of Cortes, 37 Ed Dept Rep 114, Decision No. 13,818; Appeal of Forde, supra). In such cases, the determination of the child"s residence must rest ultimately with the family (Appeal of Cortes, supra; Appeal of Barron, supra; Appeal of Forde, supra).

Upon the record before me, I find that petitioner Weik has consented to her daughters" residence with petitioner Teufel for purposes of Education Law "3202. Patricia and Kelly have attended respondents' schools for over six years. The petition signed by petitioner Weik states her intention that the children reside with their father. The shared custody arrangement, as articulated by petitioners, indicates that Patricia and Kelly spend a substantial amount of time in their father"s household and that they are active members of community organizations within their father"s community. Accordingly, I find that the family"s intent is that Patricia and Kelly reside with their father.

Respondents have provided no competent evidence that demonstrates that Patricia and Kelly are not district residents. An investigator for the district observed the mother transport one child on three occasions during the same week to an address in close proximity to the father"s home. In one instance the report names the child observed as Patricia, in the other two instances it simply refers to "the female student." The surveillance report does not refer to Kelly at all. It is not clear that the same investigator was involved on all three occasions. Observing one child on three occasions being transported from the mother"s home to an address in close proximity to the father"s home is not convincing proof that Patricia and Kelly do not reside with their father. To the contrary, such findings are entirely consistent with the information provided by petitioners regarding their daughters" schedules.

Accordingly, I find that Patricia and Kelly"s residence, for purposes of Education Law "3202(1), is with their father.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Patricia Lynne Teufel and Kelly Ann Teufel to attend school in the West Islip Union Free School District without the payment of tuition.

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