Appeal of TRISHA JARRETT, on behalf of her son KENDALL SANFORD, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 15,241

(July 15, 2005)

Law Firm of Anthony D. DeNaro, P.C., attorneys for petitioner, Naresh K. Dawan, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Uniondale Union Free School District ("respondent") that her son, Kendall, is not a district resident and is not entitled to attend district schools. The appeal must be dismissed.

Kendall has attended respondent's schools since he was registered in June 2003. When petitioner registered Kendall, she gave his address as Crowell Street, Hempstead, an address within respondent's district. It appears that the Crowell Street address is the residence of petitioner's mother, Cynthia Jarrett. On the registration form, petitioner listed Dyre Avenue, Bronx, as a previous address. Petitioner's husband, Stefan Sanford, currently resides at the Dyre Avenue address.

Respondent became suspicious of Kendall's residence after he told his teacher that he lived in the Bronx. Respondent's investigator followed Kendall after school on September 29 and November 23, 2004, when he was picked up by petitioner and driven to the Bronx. On December 8 and December 9, 2004, the investigator waited at the Crowell Street address from approximately 7:00 a.m. to 8:45 a.m., but did not see petitioner, Kendall, or petitioner's vehicle. On the mornings of January 19 and January 21, 2005, the investigator waited at the Bronx address. On both days, he observed petitioner and Kendall leave the residence shortly before 8:00 a.m., enter petitioner's car, and drive from the Bronx to Long Island.

On January 27, 2005, respondent's superintendent and an official in its Central Registration Bureau sent a letter to petitioner and her husband advising that Kendall would be excluded from school because he did not reside in the district. On February 14, 2005, petitioner and her husband met with district officials to present additional evidence of residency in the district. On February 15, 2005, respondent's Central Registration Bureau issued a final determination finding that petitioner and Kendall both reside at the Bronx address and excluded Kendall as of March 4, 2005. This appeal ensued. On March 22, 2005, petitioner's request for interim relief was granted.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

Where a child's parents live apart, or claim to do so, the child can have only one legal residence (People ex. rel. The Brooklyn Children's Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Williams, 42 id. 8, Decision No. 14,756). In cases where parents have joint custody, 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 T.K., 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849; Appeal of Weik and Teufel, 41 id. 80, Decision No. 14,621). 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 Williams, 42 Ed Dept Rep 8, Decision No. 14,756; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171).

In the case before me, petitioner presents a cell phone bill, a car insurance bill, her driver's license, and a store charge account statement, all indicating that she resides at Crowell Street. However, respondent points out that the land line phone at Dyre Avenue is in petitioner's name, and that petitioner's car is registered with the New York State Department of Motor Vehicles at Dyre Avenue. It also appears that the land line phone at Crowell Street is listed in petitioner's mother's name.

It is the pattern of travel to and from the Bronx which led the district to conclude that petitioner and her son actually live at Dyre Avenue, and commute every day to Long Island. At the conference on February 14, petitioner revealed that she is employed on Long Island, apparently in or near respondent's district. Petitioner has not served a reply to contest the surveillance findings, but attempted to explain the reasons for such travel during the February 14 conference. The district hearing officer nevertheless concluded that petitioner and her son live outside the district.

At the conference, petitioner and her husband indicated that they remain married, and are not separated. Petitioner candidly admitted that she and her son often sleep at the Bronx residence, including weekdays when her son has school the next morning. As respondent states: "Petitioner's frequent return [sic] on a daily basis to the family home in the Bronx is incompatible with the notion that she presently resides at . . . Crowell Street in Hempstead."

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Based upon the record before me, I cannot say that respondent's determination was arbitrary or capricious, and I therefore dismiss the appeal.

THE APPEAL IS DISMISSED.

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