Appeal of EVELYN CABREJA, on behalf of her son JOHN, from action of the Baldwin Union Free School District regarding residency.

Decision No. 15,645

(August 22, 2007)

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

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her son, John, is not a district resident.  The appeal must be dismissed.

Pursuant to a Judgment of Divorce and Stipulation of Settlement, petitioner and her former husband share joint legal custody of John and petitioner’s former husband retains physical custody.  Petitioner resides outside respondent’s district and her former husband resides within the district.

In June 2006, the district received information that John was possibly living with his mother outside the district.  In September 2006, respondent’s investigator initiated surveillance.  In the early morning hours, on 10 days from September 20, 2006 through December 11, 2006, John was not observed at his father’s in-district residence.  Surveillance also showed that on 19 occasions between September 20, 2006 and March 30, 2007, John or petitioner were observed exiting petitioner’s residence or traveling to or from petitioner’s residence.

By letter dated October 31, 2006, respondent’s director of pupil services (“director”) notified petitioner that she had reason to believe that John resided outside the district and that he would be excluded from the district’s schools as of November 15, 2006.

At a conference held in early November 2006, petitioner informed the district that John divided his time between her home and her former husband’s in-district residence.  By letter dated November 8, 2006, petitioner notified respondent that John resides with his father but on occasion spends time with her because of “confrontations” with his father. 

By letter dated February 28, 2007, the director notified petitioner’s former husband that she had reason to believe that John was not a district resident and that he would be excluded from the district’s schools as of March 19, 2007.

According to respondent, on March 13, 2007, petitioner’s former husband advised the director that John had been staying with his mother for a number of months and that he did not know how long the situation would continue.

By letter dated March 13, 2007, the director notified petitioner’s former husband that John was not a district resident and that he would be excluded from the district’s schools effective March 19, 2007.

On March 27, 2007, petitioner met with the superintendent to explain her perspective on John’s residency.  By letter dated April 12, 2007, the superintendent concurred with the director’s position that John was not a district resident, and advised petitioner that John would be excluded from the district’s schools effective April 13, 2007.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 3, 2007.

Petitioner alleges that John is having difficulty with his father and therefore, has been temporarily residing with her since November 2006.  Petitioner also contends that John was excluded from school before she was provided with the district’s final residency determination or an opportunity to appeal that determination.

Respondent contends that the appeal is untimely and that petitioner has failed to meet her burden of demonstrating a right to the relief requested.  Finally, respondent alleges that John resides with petitioner outside the district.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Respondent contends that the appeal is untimely because its final determination in this matter was issued on March 13, 2007 and the appeal was not properly commenced until April 26, 2007.  Petitioner contends that she was not provided with respondent’s final residency determination.  The record reflects that respondents March 13, 2007 determination was addressed only to petitioner’s former husband and that petitioner was not notified by respondent of its final determination until she received the superintendent’s April 12, 2007 letter.  Consequently, I will not dismiss the appeal as untimely.

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 Innocent, 44 Ed Dept Rep 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).  Although John’s father was awarded physical custody, by petitioner’s own admission John has been living with her since November 2006 and will continue to do so for an indeterminate period of time.  Respondent’s surveillance provides evidence to support the finding that John resides with his mother outside the district.  In such cases, residency is determined by the traditional tests of physical presence in the district and intent to remain there.  Therefore, based on the record before me, I cannot find respondent’s determination to be either arbitrary or capricious, and the appeal must be dismissed.

In light of this determination, I need not address the parties’ remaining contentions.

While the appeal must be dismissed, petitioner has the right to apply to the district for admission on her son’s behalf if circumstances have changed (Appeal of Peacock, 46 Ed Dept Rep 120, Decision No. 15460).

THE APPEAL IS DISMISSED.

END OF FILE