Appeal of DAVID E. FINNELL and DONNA M. MORGAN, on behalf of their son COLIN, from action of the Board of Education of the Elmira Heights Central School District regarding residency.

Decision No. 16,295

(August 29, 2011)

Shull & Coyles, attorneys for respondent, Donald B. Coyles Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the Elmira Heights Central School District (“respondent”) that their son Colin is not a district resident.  The appeal must be dismissed.

Petitioners are divorced, with joint legal custody of their son, Colin.  According to two court-approved custody agreements submitted by petitioners, they “share physical placement” of their children and have designated respondent’s school district, where Colin’s mother resides (“Elmira Heights address”), as the district in which Colin will attend school.  As a result, Colin has attended school in respondent’s district and was enrolled there during the 2010-2011 school year.

By letter dated October 27, 2010, the superintendent notified petitioners that “a determination has been made” that Colin was not a resident and informed them of their right to appeal the decision pursuant to Education Law §310.  Petitioners responded by letter dated October 28, 2010, indicating their intent to do so and this appeal ensued.

Petitioners request for interim relief was rendered moot when respondent agreed to permit Colin to continue to attend school in the district pending a determination of the appeal.

Petitioners admit that Colin was “temporarily residing with his father primarily” outside the district but argue that, nevertheless, their son is entitled to attend respondent’s school without the payment of tuition due to the “long standing Joint Custody Agreement” and their designation that Colin should attend school in respondent’s district.  Respondent maintains that Colin resides outside the district with his father and that the district received no information regarding the temporary nature of that arrangement.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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.P., 45 Ed Dept Rep 156, Decision No. 15,288).  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.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  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 Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

Initially, I note that the pleadings and papers submitted by both parties contain minimal information and little documentary evidence.  Petitioners submit two court-approved custody agreements from 1998 and 2010 indicating that they share joint legal and physical custody of their son.[1]   It appears that, pursuant to those agreements, Colin’s time was “essentially divided” between petitioners and, accordingly, they designated respondent’s school district as the district in which Colin would attend school.

Petitioners admit that, at some point, Colin began living primarily with his father outside the district.  Petitioners assert that this was a temporary arrangement and that the family was working with a counselor “to return to the normal residency [sic] as per the Court Order.” Subsequently, petitioners received the October 27, 2010 residency determination. 

As a procedural observation, it is unclear from the record whether respondent afforded petitioners any opportunity to present information concerning the alleged temporary nature of the above arrangement prior to its October 27, 2010 letter, as required by §100.2(y) of the Commissioner’s regulations.  Petitioners do not clearly assert any violation of Commissioner’s regulations in their petition.  Although petitioners complain that they were not permitted to meet “with the District to explain the temporary residency nature,” there are some references to requests for information and also to documentation in the district’s possession.  Moreover, §100.2(y) of the Commissioner’s regulations does not specifically require that a meeting take place.

In any event, petitioners have had a full and fair opportunity to present information and submit any documentation regarding residency in this appeal.

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

On this record, I cannot find that petitioners have met their burden.  The petition consists of only conclusory allegations regarding the temporary nature of Colin’s living primarily with his father.  Petitioners have presented no documentation other than the court orders to support their argument.  They submit no other evidence, such as an affidavit from the counselor purportedly working with the family.  Petitioners refer to documents allegedly possessed by the district, but do not provide them. 

Respondent claims that all contact during the 2010-2011 school year regarding the student has been with Colin’s father and that it has been unable to contact his mother about any student issues.  Petitioners dispute those assertions, alleging that the district did, in fact, have contact with the mother.  Neither party submits documentation to support their claims.

On the record before me, the evidence from both parties is unpersuasive.  However, petitioners have the burden of proof and, consequently, have not established that respondent’s determination was arbitrary or capricious, warranting dismissal of the appeal.

I note, however, that circumstances may have changed since petitioners initiated this appeal.  Petitioners assert in their reply that respondent has an affidavit in its possession stating that Colin lives with his mother Wednesday through Friday each week.  Petitioners did not submit a copy of such alleged affidavit in this appeal and have provided no further evidence to support that assertion.  However, if true, such changed circumstance may affect Colin’s residency status in the district.  

Accordingly, while the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to the district on their son’s behalf and to present any new information for the district’s consideration.  Respondent is reminded that any residency determination must be made in compliance with the requirements of §100.2(y) of the Commissioner’s regulations.   

THE APPEAL IS DISMISSED.

END OF FILE.