Appeal of DEBORAH and LESLIE GURKA, on behalf of their daughter CINDY, from action of the Board of Education of the Lakeland Central School District and JOEL M. KLEIN, Director of Pupil Personnel Services, concerning residency.

 

 

(June 28, 2004)

 

Giacchino J. Russo, Esq., attorney for petitioners

 

Shaw & Perelson, LLP, attorneys for respondents, Marc E. Sharff, Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Lakeland Central School District ("board") and its designee, Joel M. Klein, Director of Pupil Personnel Services ("director") that their daughter, Cindy, is not a resident of the Lakeland Central School District ("district").  The appeal must be dismissed.

Cindy is currently enrolled in the Copper Beach Middle School ("middle school") in the district.  Petitioner Deborah Gurka ("Mrs. Gurka") resides in an apartment in Peekskill, New York outside the district.  Petitioner Leslie Gurka ("Mr. Gurka") resides in Cortlandt Manor within the district.

In January of 2004, the district hired an investigator to determine whether Cindy was a district resident.  By letter dated January 21, 2004, the investigator informed the district, among other things, that Mrs. Gurka was observed transporting Cindy to the middle school from her Peekskill residence on January 12, 13 and 20, 2004.  By letter dated January 22, 2004, the director advised Mrs. Gurka that he had determined that Cindy did not reside in the district, that Cindy would be excluded from the district"s schools effective February 2, 2004 and that she could appeal the determination to the Commissioner of Education.  After petitioners commenced this appeal on February 2, 2004, respondents agreed to permit Cindy to attend school in the district pending the resolution of her appeal and to hold a residency hearing to permit petitioners the opportunity to submit additional information establishing Cindy"s residency.

Petitioners" attorney met with respondents" attorney on February 12, 2004 and explained petitioners" custody arrangement.  By letter dated March 8, 2004, the director advised Mrs. Gurka that the district had determined that Cindy was not a district resident based on her failure to supply proof establishing that she and Cindy"s father share joint custody and that the child divides her time between the two households.

Petitioners claim that although Mrs. Gurka was granted custody of Cindy when they divorced 11 years ago, petitioners have subsequently "developed a joint custodial arrangement" whereby the child spends "approximately equal time" with each parent.  Petitioners also claim that respondents did not provide them with an opportunity to supply information supporting Cindy"s residency, as required by "100.2(y) of the Commissioner"s regulations.  They seek a determination that Cindy is a district resident entitled to attend the district"s schools tuition-free.

Respondents claim that petitioners have failed to rebut the presumption that Cindy resides with her mother, the custodial parent.

It appears from the sequence of events that respondents failed to comply with the procedures required by "100.2(y) of the Commissioner"s regulations which provides, in pertinent part:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent...the opportunity to submit information concerning the child's right to attend school in the district. When the board of education or its designee determines that a child is not entitled to attend the schools of such district because such child is neither a resident of such district nor entitled to attend its schools...such board or its designee shall...provide written notice of its determination to the child's parent....

Respondents did not comply with the regulation because the director did not afford petitioners an opportunity to present evidence supporting Cindy"s residency before issuing his determination.  However, after petitioners commenced this appeal, respondents allowed Cindy to remain in school and the director held a hearing to permit petitioners to supply proof of Cindy"s residency.  I remind respondents of their obligation to provide such opportunity before rendering a final residency determination, in accordance with "100.2(y).

Because petitioners have now had ample opportunity to present evidence in support of their residency claim, I will address the merits.  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 DiFalco, 43 Ed Dept Rep    , Decision No. 14,903; Appeal of Perez, 42 id. 71, Decision No. 14,779; Appeal of Thomas, 41 id. 84, Decision No. 14,622).

A student"s residence is presumed to be that of his or her parent or legal guardian (Appeal of DiFalco, supra; Appeal of Seger, 42 Ed Dept Rep 266, Decision No. 14,849; Appeal of Donohue, 41 id. 26, Decision No. 14,601).  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 Seger, supra; Appeal of Weik and Teufel, 41 Ed Dept Rep 80, Decision No. 14,621).  Thus, where a court order awards custody to one parent, the child"s residence is presumed to be that of the custodial parent (Appeal of DiFalco, supra; Appeal of Seger, supra; Appeal of Weik and Teufel, 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 Brown, 42 Ed Dept Rep 17, Decision No. 14,760; Appeal of Razzano, 38 id. 782, Decision No. 14,142).  Petitioners concede that Mrs. Gurka was awarded legal custody of Cindy at the time of their divorce.  To rebut the presumption that Cindy resides with her mother, petitioners rely almost exclusively on their own unsupported statements that they share joint custody of Cindy, that Cindy divides her time between the two households and that petitioners have designated Mr. Gurka"s home as Cindy"s residence.  In contrast, respondents submit affidavits from the morning and afternoon bus drivers for the route covering Mr. Gurka"s residence who state that they have either never transported Cindy on the bus, or have done so only two or three times during the school year.  Further, respondents submit proof showing that Mrs. Gurka was observed transporting Cindy to school from Peekskill on March 4, 9 and 10, 2004, in addition to the occasions in January when she was initially observed doing so by the district"s investigator.  Although the district"s surveillance evidence is not overwhelming, it does cast some doubt on petitioners" claim that Cindy divides her time between the two households.  In contrast, petitioners have failed to produce any evidence to counter respondent"s surveillance evidence or to adequately explain why Cindy does not take the bus to school from Mr. Gurka"s home.  Based on all the facts and circumstances, I find that petitioners have failed to rebut the presumption that Cindy resides with her mother.

In sum, I cannot conclude that respondents acted arbitrarily or capriciously in determining that petitioners" daughter resides with her mother outside the district.  Where evidence is insufficient for me to conclude that respondents acted arbitrarily or capriciously in making a residency determination, the determination will not be set aside (Appeal of Brown, supra; Appeal of Digilio, 37 Ed Dept Rep 25, Decision No. 13,795; Appeal of Steinberg, 36 id. 65, Decision No. 13,658).

 

THE APPEAL IS DISMISSED.

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