Appeal of PHILIP STRIANO, on behalf of his son CHRISTIAN, from action of the Board of Education of the Dobbs Ferry Union Free School District regarding residency.

Decision No. 15,651

(August 31, 2007)

Shaw, Perelson, May and Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

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

Petitioner owns a home on Hudson Road West, within respondent’s school district, and an apartment building in Irving, outside respondent’s district.  Christian’s mother resides outside respondent’s district in Yonkers.  According to the petition, petitioner and Christian’s mother separated following which, Christian’s time was divided between the separate households of his father and mother.

By letter dated March 13, 2007, respondent’s director of finance and facilities (“director”) informed petitioner that she had reason to believe that Christian was not a district resident.  The director informed petitioner that she would consider information submitted on or before March 30, 2007 supporting Christian’s right to attend district schools.

On March 15, 2007, Christian’s mother met with the director to obtain the district’s residency policy and to ascertain what documentation was required to determine that her son was a district resident.

On March 23, 2007, Christian’s mother emailed the director requesting an extension of the March 30, 2007 deadline because she had not yet been provided with a copy of the district’s residency policy.  On the same date, the director emailed Christian’s mother and indicated that, upon receipt of respondent’s residency determination, she could appeal to the superintendent.  Christian’s mother contacted the superintendent complaining that the director had made a residency determination prior to taking into consideration her input.

By notarized letter dated March 28, 2007, petitioner and his wife (who is not Christian’s mother) informed the director that the Hudson Road West residence was the family home but that, on occasion, due to marital difficulties, petitioner occupied the Irving apartment. 

By letter dated April 2, 2007, petitioner was informed that Christian would not be permitted to attend district schools because he resided outside the district in Yonkers.

By email dated April 9, 2007, Christian’s mother requested clarification from the superintendent on the appeals process, and by email dated April 10, 2007, the superintendent informed her that she could appeal respondent’s determination to the Commissioner of Education.  By email dated April 10, 2007 to respondent, Christian’s mother requested that Christian be permitted to remain in school pending an appeal.  By email dated April 11, 2007, the superintendent described portions of the appeal process to Christian’s mother.

By letter dated April 12, 2007 to respondent, petitioner’s attorney pled petitioner’s case and requested that Christian be permitted to remain in school.  This appeal ensued.

Petitioner alleges that he and Christian’s mother have joint custody of Christian and that they have agreed that Christian’s residency lies with petitioner in respondent’s district.  Petitioner alleges that his primary residence is the family home within respondent’s district.  He acknowledges that due to personal issues, he and Christian are temporarily occupying an apartment outside respondent’s district.  However, he alleges that he and his son have significant ties to the Dobbs Ferry community and intend to permanently occupy the family home in the district.   

Petitioner further alleges that respondent’s residency determination was defective because it did not advise him of his right to appeal the determination to the Commissioner of Education as required by §100.2(y)(4) of the Commissioner’s regulations.  Petitioner contends that he was not provided with adequate time to commence an appeal prior to Christian’s removal from school.  Finally, petitioner alleges that respondent’s residency determination was arbitrary, capricious and in violation of applicable rules.  Petitioner requests that Christian be permitted to attend district schools without the payment of tuition.

Respondent contends that petitioner has failed to meet his burden of demonstrating a right to the relief requested.  Respondent maintains that petitioner has failed to establish that he and Christian’s mother share joint custody of Christian, that Christian’s time is essentially divided between them and that they have the right to determine where Christian resides for residency purposes.  Respondent alleges that Christian’s primary residence is with his mother in Yonkers and that there is no evidence that he resides with his father within the district.  Respondent contends that there is no indication that petitioner’s residence outside the district is only temporary.  Respondent maintains that it inadvertently omitted information regarding the appeal process from its April 2, 2007 residency determination.  Finally, respondent contends that its determination was neither arbitrary, caprious nor an abuse of discretion.

Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Humphrey, 43 Ed Dept Rep 117, Decision No. 14,940; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613).  The regulation does not require a formal hearing or representation by counsel (Appeal of Rosen, 43 Ed Dept Rep 87, Decision No. 14,929; Appeal of Marbury, 41 id. 119, Decision No. 14,634).  As respondent admits, the director’s letter of April 2, 2007 fails to include a statement regarding the right to appeal to the Commissioner as required by §100.2(y)(4) of the Commissioner’s regulations.  Accordingly, I admonish the district to comply henceforth with the procedures established §100.2(y).

Nevertheless, since petitioner has had ample opportunity to present evidence in support of his 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 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).  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).

Petitioner’s statement in the petition that he and Christian’s mother share joint custody and that Christian’s time is essentially divided between them, along with the sworn affidavit from Christian’s mother that she and petitioner share joint custody of their son and have agreed that their son’s residency is with petitioner within the district is sufficient to establish the same.  Therefore, the decision regarding Christian’s residency lies with his family who has determined that it is with petitioner.  The issue then becomes whether, in actuality, Christian resides in Yonkers with his mother or with his father in the district.

Respondent alleges that Christian resides with his mother outside the district.  Respondent’s determination is based largely upon limited surveillance evidence collected from Friday, March 3, 2007 through Thursday, March 8, 2007.  This surveillance did not produce conclusive results in view of petitioner’s explanation that Christian spends Monday and Tuesday evenings with him, Wednesday and Thursday evenings with his mother and alternates weekends with each of them.  Therefore, I find that respondent’s determination that Christian resides with his mother in Yonkers is based upon insufficient evidence.

I turn next to the issue of whether petitioner is temporarily absent from respondent’s district.  A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).

The parties do not dispute the fact that petitioner owns a home in the district and an apartment building outside the district.  Respondent alleges however, that petitioner’s residence outside the district is not temporary.  Petitioner submits a number of documents in support of his claim that his permanent residence is within the district, including a notarized letter signed by he and his wife indicating that their personal difficulties are temporary, that petitioner occasionally sleeps at the Irving apartment, and that petitioner has every intention of moving back to the in-district residence on a full-time basis “relatively soon.”  Petitioner also offers copies of his driver’s license, a Merrill Lynch statement, Christian’s third quarter school progress report and a savings statement all reflecting his address as the in- district residence.

While petitioner expresses an intent to return to the district relatively soon, he has failed to supply sufficient evidence demonstrating progress toward achieving that objective.  Petitioner’s claimed intent to return to the district is insufficient to establish residency, absent evidence of substantial progress toward meeting that objective or at the very least a concrete and realistic plan to do so (Appeal of J. V. 44 Ed Dept Rep 421, Decision No. 15,218; Appeal of Collins. 44 id. 74, Decision No. 15,103). Thus, on the record before me, I cannot conclude that respondent’s determination that Christian is not a district resident was arbitrary or capricious.

Nevertheless, I note that petitioner retains the right to apply to the district for admission of his son at any time should circumstances change (Appeal of P.E., 45 Ed Dept Rep 148, Decision No. 15,286).

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

     THE APPEAL IS DISMISSED.

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