Appeal of GARY S. SCHULTZ, on behalf of his son SPENCER, from action of the Board of Education of the Whitesboro Central School District regarding residency.

Decision No. 15,242

(July 15, 2005)

Frye, Foley & Carbone, attorneys for respondent, Richard A. Frye, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Whitesboro Central School District ("respondent") that his son, Spencer, is not a district resident. The appeal must be sustained.

Spencer attended school in respondent's district since he entered kindergarten in September 1998. By letter dated October 14, 2004, respondent's Grade 6 Assistant Principal informed petitioner that Spencer would not be allowed to attend school in the district, tuition-free, effective October 27, 2004, because he was residing outside the district with his mother. Petitioner then provided the assistant principal with information regarding Spencer's custodial status including a court order dated June 1, 2004, from the Oneida County Family Court which established that he and Spencer's mother had joint legal custody of Spencer. By letter dated December 6, 2004, respondent's superintendent informed petitioner of his determination that Spencer's primary residence was with his mother outside the district, that petitioner's residence within the district was considered "transient at best" and, therefore, Spencer was not a resident of the district. This appeal ensued. Petitioner's request for interim relief was granted on January 7, 2005.

Petitioner argues that he resides in the district, that he and Spencer's mother have joint custody, and that they have agreed that Spencer will attend respondent's schools.

Respondent contends that petitioner's residence in the district is "transient at best" and that Spencer resides outside the district with his mother.

As a threshold matter, petitioner's reply contains new affidavits containing allegations and assertions not set forth in the petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent also offers new allegations in its memorandum of law. A memorandum of law should consist of arguments of law (8 NYCRR �276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540). Therefore, I have not considered those portions of respondent's memorandum of law that raise new arguments.

Petitioner requests that I consider an additional affidavit in response to issues raised in respondent's memorandum of law. I have accepted this affidavit but have not considered those portions responsive to new allegations in respondent's memorandum of law.

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 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, 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).

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).

In the instant case, respondent does not dispute that petitioner co-owns the in-district residence and lives within the district, but contends that his residency is "transient at best." Respondent, however, offers no basis upon which it reached this conclusion. Petitioner contends that he resides within the district with his ex-wife (who is not Spencer's mother) and will continue to do so until he and his ex-wife decide otherwise. I find that the unsubstantiated allegation that petitioner's residence within the district is transient an insufficient basis upon which to find that petitioner is not a district resident, and I therefore set aside that determination (seeAppeal of Craig, 44 Ed Dept Rep 8, Decision No. 15,078).

In support of his petition, petitioner submits an order of the Oneida Family Court, dated June 1, 2004, which provides that he and Spencer's mother shall continue to have "joint, legal and shared custody" of Spencer and share physical custody of Spencer with petitioner from Thursday when he is released from school through Sunday at 5:00 p.m., along with various holidays and vacations.

Since the record establishes that the parents have been awarded joint custody and Spencer's time is "essentially divided " between their residences, the decision regarding the child's residency resides ultimately with the family. Because the parents agree that Spencer shall attend school in respondent's district, there is no basis for respondent's determination that Spencer is not entitled to attend its schools as a district resident.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Spencer to attend school in the Whitesboro Central School District without the payment of tuition.

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