Appeal of T.K., on behalf of his children M.K. and J.K., from action of the Board of Education of the Bethlehem Central School District regarding residency.

 

Decision NO. 14,935

(August 22, 2003)

Harvey and Mumford LLP, attorneys for petitioner, Melody A. Mackenzie, Esq., of counsel

 

Roger M. Fritts, Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioner, the father of M.K. and J.K., appeals the determination of the Board of Education of the Bethlehem Central School District ("respondent") that his children are not district residents.  The appeal must be sustained.

Petitioner is a resident of respondent's district. Pursuant to a judgment of divorce and order of custody dated May 25, 1999, petitioner and the children's mother, who resides outside of respondent's district, were awarded joint legal custody, with primary physical possession awarded to the mother and visitation provided to petitioner.  In a subsequent decision entered on July 1, 2002, the Family Court designated respondent's Elsmere Elementary School ("Elsmere") as the school the children would attend as of September 2002.  The children began attending Elsmere, but in October 2002 respondent's superintendent notified petitioner and the children's mother that, after reviewing the court order as well as custody documents, it was determined that the children reside outside the district with their mother, and therefore are not entitled to attend respondent"s schools.    

This appeal ensued.  Although petitioner requested interim relief directing respondent to admit the children pending an ultimate determination of this appeal, it was not necessary for me to determine such request since respondent consented to stay its determination pending resolution of petitioner's appeal.

Education Law "3202(1) provides, in pertinent part:

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 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 Perez, 42 Ed Dept Rep ___, Decision No. 14,779; Appeal of Thomas, 41 id. 84, Decision No. 14,622; Appeal of Oliver, 41 id. 30, Decision No. 14,603). A student"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Donohue, 41 Ed Dept Rep 26, Decision No. 14,601; Appeal of Weaver, 39 id. 588, Decision No. 14,320; Appeal of Williams, 39 id. 73, Decision No. 14,177).  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 aff"d, 196 NY 551 ; Appeal of Weik and Teufel, 41 Ed Dept Rep 80, Decision No. 14,621 ; Appeal of Marilyn J., 41 id. 78, Decision No. 14,620 ).  In cases where parents have been awarded joint custody and the child"s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child"s residency lies ultimately with the family (Appeal of Weik and Teufel , supra; Appeal of Cortes, 37 Ed Dept Rep 114, Decision No. 13,818 ).  However, when parents claim joint custody but do not produce proof of the child"s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Lavelanet, 39 Ed Dept Rep 56, Decision No. 14,171 ; Appeal of Razzano, 38 id. 782, Decision No. 14,142 ).  In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Jones, 42 Ed Dept Rep __, Decision  No. 14,797; Appeal of Razzano, supra; Appeal of Plesko, 37 Ed Dept Rep 238, Decision No. 13,850). 

Petitioner includes as an exhibit to his petition, the Decision and Order of the Schenectady County Family Court, entered on July 1, 2002, which states that pursuant to the Divorce Judgment, and the incorporated Family Court Order of Custody entered May 25, 1999, "the parties share joint custody of both children with primary physical possession to [the mother]."  In a footnote to the July 1, 2002 Family Court Decision and Order, the Court clarifies the custody arrangement:

"The designation of either party as the primary physical custodian is somewhat insignificant in that, although the [mother] views the possessory schedule as giving her the children two-thirds (2/3) of the time and the [father] one-third (1/3) of the time, the [father] views the same as fifty-five percent (55%) to [the mother] and forty-five percent (45%) to him.  The Law Guardian points out that, if school time and time spent asleep are factored out, the parties have virtually equal possessory time of the children."

Since the record establishes that the parents have been awarded joint custody and the childrens' time is "essentially divided" between the parents' residences, the decision regarding the child"s residency lies ultimately with the family (Appeal of Weik and Teufel , supra; Appeal of Cortes, supra ).  Because the parents in this case were unable to agree on the selection of schools, they left this determination to the Family Court.  The Family Court  determined that both children shall attend Elsmere Elementary School in respondent's district.  Accordingly, on this record, there is no basis for respondent's determination that the children are not entitled to attend its schools as district residents.

 

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow M.K. and J.K. to attend school in the Bethlehem Central School District without the payment of tuition.

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