Appeal of ROSALIND BROWN, on behalf of her daughter MARILENA MOODY, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,644

(August 7, 2014)

John J. McGrath, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) that her daughter, Marilena Moody, is not a district resident.  The appeal must be dismissed.

During the 2013-2014 school year, Marilena attended respondent’s Grand Avenue Elementary School (“school”).  Petitioner asserts that she and Marilena reside at her mother’s residence within the district (“Hempstead address”) and that Marilena “has visitation with” her father, who temporarily resides with a friend outside the district (“Valley Stream address”).  Petitioner asserts that Marilena “occasionally sleeps overnight” at the Valley Stream address “during her scheduled visitation with” her father.

According to respondent, in November 2013, its Office for Central Registration received information that Marilena was residing outside the district in Valley Stream.  As a result, respondent commenced a residency investigation, which included surveillance between December 4, 2013 and January 6, 2014.  Although respondent’s investigator visited the Hempstead address in the early morning hours of December 4, 10, 13, 18, 19, and 20, 2013, and January 6, 2014, petitioner’s vehicle was not present.  Rather, respondent’s investigator observed petitioner transporting Marilena to school via the Southern State Parkway on the mornings of December 6, 10, 17, 19, and 20, 2013, and January 6, 2014.  According to respondent, had petitioner and Marilena been traveling to school from the Hempstead address, they would not need to take the Southern State Parkway. 

As a result, according to respondent, respondent’s administrative assistant for central registration (“administrative assistant”) “expressly advised” petitioner “via correspondence”[1] that Marilena would be excluded from school as a non-resident after January 6, 2014.  Thereafter, petitioner “appealed [respondent’s] exclusion determination” and a residency review hearing was held on January 7, 2014.  

Although no record of the hearing is contained in the record of this appeal, respondent asserts that petitioner stated at the hearing that she resided at her mother’s Hempstead address and produced a driver’s license issued by the State of Oklahoma on March 9, 2012.  According to respondent, “when questioned as to whether Petitioner and Marilena resided anywhere other than the Hempstead address,” petitioner stated that she and Marilena “also stayed at Marilena’s father’s residence” in Valley Stream; that Marilena stays at the Valley Stream address “pretty often”; that “lately, [Marilena] has been there a lot”; that “during the last couple of months” petitioner “stayed overnight at the Valley Stream address approximately five (5) days per week”; and that when both petitioner and Marilena stay overnight at the Valley Stream address, petitioner drives Marilena to school. 

According to petitioner, on January 7, 2014, she requested Marilena’s enrollment in the district, and respondent denied her request on January 8, 2014.[2]  This appeal ensued.  Petitioner’s request for interim relief was denied on February 18, 2014.

Petitioner asserts that she and Marilena reside with petitioner’s mother within the district.  She alleges that Marilena has resided within the district for five years and intends to reside within the district for “at least an additional five years.”  Petitioner requests a determination that Marilena is a district resident and is entitled to attend school tuition-free.

Respondent denies that petitioner and Marilena permanently reside within the district and asserts that the petition fails to state a claim upon which relief can be granted.  Respondent also maintains that its decision to exclude Marilena was well-founded and based upon surveillance evidence as well as “admissions” made by petitioner during the January 7, 2014 residency review hearing.

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).  The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

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).

On the record before me, I am unable to conclude that petitioner has met her burden of proof.  Together with her petition, petitioner submits an unsworn affidavit from her mother, who states that petitioner “has been living with me for the past 5 years and still is at the present time residing” at the Hempstead address.  She also submits various documents listing her residence as the Hempstead address.  These include copies of her bank statement, credit report, cable bill, auto insurance policy covering both petitioner and Marilena’s father and two automobiles, correspondence from a cell phone carrier and the Nassau County Department of Social Services, and a New York State Department of Motor Vehicles Interim ID card issued on January 13, 2014 (“interim ID card”). 

While petitioner also submitted copies of an electric bill and utility bill that were mailed to the Hempstead address in the name of “Robert Dixson,” petitioner’s mother’s husband, these documents do not establish petitioner’s residence.  In that regard, petitioner’s submission of a letter affidavit of James Calero, a friend of Marilena’s father who resides at the Valley Stream address, stating that Marilena’s father is “a temporary house guest” of his, similarly does not establish her residency.  Although the petition generally states that Marilena has “scheduled visitation with” her father, the record contains no custody order or other evidence demonstrating that petitioner and Marilena’s father share joint custody and that Marilena’s time is divided between petitioner’s household and the Valley Stream address (see e.g., Appeal of Compass, 53 Ed Dept Rep, Decision No. 16,586; Appeal of Cortes, 37 id. 114, Decision No. 13,818).

Moreover, petitioner’s claims are contradicted by respondent’s surveillance and evidence collected during the course of its investigation.  As noted above, petitioner was not observed at the Hempstead address at all in the early morning hours of December 4, 10, 13, 18, 19, and 20, 2013, and January 6, 2014.  Rather, respondent’s investigator observed petitioner transporting Marilena to school via the Southern State Parkway on December 6, 10, 17, 19, and 20, 2013, and January 6, 2014.   These observations are consistent with respondent’s determination that petitioner and Marilena do not reside within the district.

In addition, respondent asserts that, at the hearing, petitioner stated that she resided at her mother’s Hempstead address and produced a driver’s license issued by the State of Oklahoma on March 9, 2012.  The fact that an out-of-state driver’s license was issued to petitioner in March 2012 belies petitioner’s and her mother’s claims that petitioner has resided with her mother in the district for five years.  Moreover, according to respondent, petitioner admitted during the January 7, 2014 hearing to staying at the Valley Stream address approximately five days per week during the last several months and driving Marilena to school from the Valley Stream address.

Although petitioner has submitted several documents addressed to her at the Hempstead address, such documentary evidence is not dispositive where contrary surveillance evidence exists, particularly in light of the fact that such residence is owned by her parent (see Appeal of Gomes, 53 Ed Dept Rep, Decision No. 16,535; Appeal of Stewart, 47 id. 92, Decision No. 15,637; cf. Appeal of Fietta, 52 id. Decision No. 16,444).  I also note that petitioner’s interim ID card listing the Hempstead address was issued on January 13, 2014, which post-dates respondent’s residency determination.  While respondent’s surveillance evidence is not overwhelming, the evidence offered by petitioner does not explain the discrepancy between her contention that she resides within the district and the surveillance evidence submitted by respondent indicating that her actual residence is outside the district.  Other than her assertion at the residency review hearing that she and Marilena live at the Hempstead address with her mother, and that they occasionally stay at the Valley Stream address, petitioner submits no reply or other credible evidence to explain or refute respondent’s surveillance evidence. 

On this record, petitioner has not carried her burden of establishing her physical presence and intent to remain in respondent’s district.  Accordingly, I will not disturb respondent’s determination that Marilena is not a district resident.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on Marilena’s behalf at any time should circumstances change, and to submit any new information or documentary evidence for respondent’s consideration, pursuant to 8 NYCRR §100.2(y).

THE APPEAL IS DISMISSED.

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