Appeal of COURTNEY DENNIS, on behalf of her son NOAH SUPERNAULT, from action of the Board of Education of the Hilton Central School District regarding residency.

Decision No. 16,298

(September 1, 2011)

Lynda M. Van Coske, Esq., attorney for respondent

GREY, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Hilton Central School District (“respondent”) that her son, Noah, is not a district resident.  The appeal must be dismissed.

Noah is a student at respondent’s Northwood Elementary School.  According to petitioner, she and Noah reside at her father’s home on Chimney Sweep Lane, within respondent’s district (“in-district address”).  The record reflects that on March 22, 2011, Noah told a school employee that he and petitioner lived with petitioner’s boyfriend outside of respondent’s district.  This information was conveyed to respondent’s Director of Student Services (“director”) who, in turn, requested that an investigation into Noah’s residency be commenced.

Between April 1, 2011 and April 14, 2011, respondent conducted surveillance at a number of locations, including the in-district address and petitioner’s boyfriend’s residence on Velox Street outside of respondent’s district (“Velox Street address”).  A surveillance summary (“summary”) submitted by respondent indicates that, among other things, petitioner’s vehicle was observed at the Velox Street address every day, and at various times of the day, during this period.  In addition, the summary indicates that investigators observed petitioner at the Velox Street address on at least three occasions, and that Noah was seen leaving the Velox Street address and/or being dropped off at school in petitioner’s vehicle (which had been observed at the Velox Street address a short time before) on at least four occasions.  The summary also indicates that no vehicles were observed at the in-district address on five mornings and two afternoons.  Finally, respondent contends that on April 26, 2011, Noah indicated to another district employee that he lived with petitioner and her boyfriend at her boyfriend’s house (i.e., at the Velox Street address). 

By letter dated April 27, 2011, the director notified petitioner that Noah was no longer entitled to attend respondent’s schools because he was not a district resident.  This appeal ensued.   Petitioner’s request for interim relief was granted on May 9, 2011.

Though not entirely clear, petitioner appears to contend that Noah is a district resident both because she resides at the in-district address and has “primary residency” for him, and because Noah’s father, who has joint custody of Noah, would be “moving back” to respondent’s district in May 2011.  Petitioner submits  notarized statements from her father and her boyfriend as proof of her residency at the in-district address.  In addition, petitioner submits a number of documents - including her driver’s license and various medical, financial, tax, school, employment and vehicle records – which all list the in-district address.  Petitioner, therefore, requests a determination that Noah is a resident of respondent’s district and entitled to attend its schools tuition-free.

Respondent, among other things, denies that Noah and petitioner are district residents and argues that its decision to exclude Noah from its schools was neither arbitrary nor capricious.  In addition, respondent maintains that the documentation submitted by petitioner is unreliable, irrelevant and/or pre-dates the period of surveillance and, therefore, does not support her claim of residency.  Respondent requests that the petition be dismissed and that petitioner be ordered to pay tuition for her son’s attendance at its schools from “on our about March 21, 2011.”

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).

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).

In this case, the record establishes that petitioner and Noah’s father live apart and have joint custody of Noah.  In addition, it appears from the record that petitioner is attempting to establish Noah’s residency based on both her residency and that of Noah’s father.  However, at the time that this appeal was commenced, it appears that Noah’s father did not reside in respondent’s district and, though petitioner claims that he intended to move into respondent’s district in May 2011, there is no evidence from which I can conclude that he currently lives there.  Moreover, and as noted above, a child can have only one legal residence, and according to a Family Court Order dated January 21, 2009, it appears that petitioner and Noah’s father agreed that Noah would attend school in respondent’s district “based upon [petitioner’s] residency there.”[1]  The issue, therefore, is whether petitioner has met her burden of showing that she resides within respondent’s district. Based upon the record before me, I find that she has not.

Specifically, while petitioner submits a number of documents as proof of her residency at the in-district address (including two statements and a number of records addressed to her there), none of these documents establish her physical presence or intent to remain in respondent’s district.  Moreover, since the in-district address is owned by petitioner’s father, I cannot find that petitioner’s use of this address on documents, by itself, is dispositive of her residency.  This is especially true where, as here, respondent has produced evidence - including the observations of its investigators and the statements that Noah made to its personnel – which indicates that petitioner is living at the Velox Street address.  Petitioner has submitted no reply or other evidence to explain or refute respondent’s evidence.  Accordingly, I am unable to determine on this record petitioner’s actual physical presence and intention to reside in respondent’s district and, therefore, I cannot conclude that respondent’s determination in this matter was arbitrary or capricious.

While the appeal must be dismissed, petitioner retains the right to reapply to the district for admission of Noah at any time should circumstances change, and to present any new information or documentation for the district’s consideration (seeAppeal of Hylton, 50 Ed Dept Rep, Decision No. 16,248).

Finally, as to the issue of tuition, the Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).

THE APPEAL IS DISMISSED.

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