Appeal of MATTHEW SMITH, on behalf of his son TYLER, from action of the Board of Education of the Eastchester Union Free School District regarding residency.

Decision No. 15,245

(July 15, 2005)

Eugene R. Dougherty, Esq., attorney for petitioner

Keane & Beane, PC, attorneys for respondent, Mark D. Pellis and Lawrence Praga, Esqs., of counsel

 

MILLS, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Eastchester Union Free School District ("respondent") to allow his son, Tyler, to attend the district's schools. The appeal must be dismissed.

Petitioner lives within respondent's district. Petitioner claims that Tyler, age 7, lives with him, and has done so for three years. Tyler's mother lives outside the district.

On or about March 18, 2004, Tyler's parents entered into an agreement whereby they would have joint custody of Tyler, but Tyler's "primary residence is to be that of the father." Prior to the signing of this agreement, respondent retained a private investigator to look into questions regarding Tyler's actual residence. According to respondent's answering papers, the private investigator visited the mother's address in Yonkers on 20 weekday mornings between February 5, 2004, and November 1, 2004. On 18 of those days, Tyler's mother was seen exiting with Tyler, and driving him to a school bus stop in respondent's district where he boarded a school bus.

Respondent's director of pupil personnel services alleges in an affidavit that she had a conversation with petitioner in March 2004, at which time he admitted that Tyler had been living with his mother in Yonkers since the end of 2003.

It appears that respondent then made a determination that Tyler was not a resident of the district and was not entitled to attend schools in the district. This appeal was commenced on December 22, 2004, and on January 12, 2005, I denied petitioner's application for interim relief.

Commissioner's regulation �275.10 provides:

The petition shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

In this appeal, neither the petition nor the reply even mentions the fact that respondent made any sort of residency determination, nor does petitioner supply a copy of the same. Only from respondent's answer does the reader learn that a determination was made on November 22, 2004, that petitioner's son was not a district resident, and was not entitled to attend the district's schools.

The petition merely alleges that Tyler lives with his father pursuant to an agreement between his father and mother, improperly cites three Commissioner's decisions that petitioner argues support Tyler's right to attend Eastchester schools, and requests that I determine that Tyler is a resident. The reply also makes no reference to respondent's residency determination, and barely mentions the surveillance evidence provided by respondent. It makes no attempt to refute or explain respondent's surveillance evidence, but merely alleges that it is "not dispositive."

A petition must state sufficient facts to allow respondent to answer, and petitioner has the burden of establishing a right to relief. It has been said that, at least where petitioner is not represented by counsel, a liberal interpretation is appropriate absent prejudice to the opposing party (Appeal of Darrow, 43 Ed Dept Rep 394, Decision No. 15,029; Appeal of World Network Int' l Services, Inc., 38 id. 800, Decision No. 14,146; Appeal of Screen, 36 id. 302, Decision No. 13,731). However, where a petition "fails to indicate what if any action petitioners are appealing," it must be dismissed (Appeal of Stephen and Roseanne W., 39 Ed Dept Rep 808, Decision No. 14,388). The same result occurred in Appeal of Taylor (39 Ed Dept Rep 712, Decision No. 14,357): "In addition, the petition must be dismissed because it is devoid of allegations of wrongdoing by respondent and therefore fails to state a claim against it." The petition herein suffers the same fatal defect, and must also be dismissed.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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, 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 been awarded 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 appeal before me, respondent's surveillance evidence indicates that Tyler's time is not "essentially divided" between households, but that he spends the majority of his time with his mother outside the district. Petitioner has presented no credible evidence to the contrary. 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 view of this disposition, there is no need to consider the parties' other claims.

THE APPEAL IS DISMISSED.

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