Appeal of JODY KENTON, on behalf of his son KAIDEN, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,649

(August 18, 2014)

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

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

Petitioner states that he resides with his son in the district and that Kaiden has lived within the district for five years.  The record indicates that on September 24, 2013, a request for admission to respondent’s schools was made for Kaiden.  The petition includes a notarized letter in which Kaiden’s mother states that he lives with his father in the district where she also resided until September 24, 2013, at which point she moved to another address outside the district (the “Brooklyn address”) due to her separation from Kaiden’s father.  In her statement, Kaiden’s mother said that he visits her residence “approximately two to three times during the week and on alternating weekends.”

In support of his claim of residency, petitioner submits a deed for the in-district residence, as well as a paid tax receipt for the first half of the 2014 fiscal year and a homeowner’s insurance policy for the period of June 28, 2013 to June 28, 2014.  Petitioner also states that “I do not intend to move in the near future.” 

According to the record, during February 2014, respondent received information that Kaiden was actually residing with his mother outside the district at the Brooklyn address.  As a result, the district commenced a residency investigation which consisted of four days of surveillance conducted between March 12 and March 19, 2014.  The record indicates that, by letter dated March 21, 2014, respondent advised petitioner that Kaiden was no longer eligible to attend the schools of the district based upon respondent’s determination that the student was not a permanent resident.[1] 

The record further indicates that Kaiden’s parents appealed the district’s exclusion determination and a residency review hearing was conducted on March 25, 2014.  By letter dated March 25, 2014, respondent informed petitioner that “[d]uring the Residency Review Hearing you attended on March 25, 2014 the additional information that you provided regarding your residence was reviewed.”  The letter further stated that respondent determined that Kaiden is not a district resident and therefore is not eligible to attend respondent’s public schools.  The letter further stated that “our initial letter remains in place” and that “[a]s the original letter sent to you on March 21, 2014 stated, the last day of attendance was March 21, 2014.”  This appeal ensued.  Petitioner’s request for interim relief was granted on April 17, 2014. 

Petitioner seeks a determination that Kaiden is a district resident entitled to attend school without the payment of tuition. 

As an affirmative defense, respondent argues that the petition must be dismissed for improper service.  In addition, respondent contends that the petition fails to state a claim upon which relief may be granted, the  requested relief should be denied as petitioner cannot establish that his child permanently resided in the district during the 2013-2014 school year, and that its residency determination was not arbitrary or capricious. 

I will first address the procedural issue.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Here, petitioner’s affidavit of service indicates that the petition was by delivered to, and left with, Gregory M. Singer (“Mr. Singer”) on April 9, 2014.  Petitioner’s process server avers that she knew the person so served to be Mr. Singer who is the district’s Administrative Assistant for Central Registration and “who is duly authorized to accept service.”  Respondent does not refute this statement by contending that Mr. Singer is not authorized to accept service, but merely asserts that the district clerk was not served.  Respondent has neither admitted nor denied that Mr. Singer is authorized to accept service and the record contains no evidence, such as a statement by respondent denying that service was made upon any person authorized by it to accept service or an affidavit from Mr. Singer or the district clerk stating that Mr. Singer was not duly authorized to accept service (cf. Appeal of Compass, 53 Ed Dept Rep, Decision No. 16,586).  Here, respondent states that only Mr. Singer was served and provides an affidavit of the district clerk in which she avers that she was not served.  The burden is on respondent to establish its affirmative defense, and on this record, I find that respondent has failed to do so (see e.g. Application of Simmons, 53 Ed Dept Rep, Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Thus, I decline to dismiss the appeal for failure to properly serve respondent under these circumstances.      

Nevertheless, the appeal must be dismissed on 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 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).

Respondent’s determination that petitioner’s son is not a district resident is based, in large part, on the results of its surveillance.  Respondent’s investigator observed Kaiden and his mother on the afternoon of March 12, 2014 leaving a parent-teacher conference at the school and driving “out of the district into the confines of the City of New York.”  The next week, respondent’s investigator conducted surveillance on three mornings – on March 17, 2014, surveillance was conducted at petitioner’s in-district address where respondent states that motor vehicles registered to petitioner and Kaiden’s mother werenot observed, nor was Kaiden observed leaving for school.[2] However, that same morning, Kaiden’s mother was observed driving out of the district and “travelling back” to the Brooklyn address.  On March 18, 2014, again at petitioner’s in-district address, Kaiden’s mother’s vehicle was not observed and Kaiden was not observed leaving the house but was picked up by a school bus at a nearby corner.  On the morning of March 19, 2014, Kaiden and his mother were observed getting into her vehicle at the Brooklyn address and heading in an “eastbound direction.”

Although respondent’s surveillance evidence is very weak, on this record I find that petitioner has not met his burden of proof.  The petition contains only conclusory statements that Kaiden resides with petitioner and “periodically visits” his mother’s home in Brooklyn.  Petitioner also submits a notarized letter from Kaiden’s mother stating that he visits her residence “approximately two to three times during the week and on alternating weekends.”  The record indicates that both petitioner and Kaiden’s mother made similar statements at the residency review hearing.  The only other evidence included in the petition, aside from a copy of Kaiden’s birth certificate, are documents which support petitioner’s ownership of the in-district residence (deed, tax and insurance statements)  but which are not dispositive of petitioner’s or Kaiden’s residency.

Respondent has produced evidence that during the surveillance period, Kaiden and his mother were seen travelling out of the district after school on one occasion in the first week.  The next week, on two successive mornings, Kaiden was not seen leaving for school from the in-district address and on one of those occasions he was observed boarding a school bus at a nearby bus stop, and on the other occasion, three other students, a boy and two girls, were observed leaving the in-district residence.   Kaiden and his mother were observed leaving the Brooklyn address on the third morning.  This evidence, coupled with the statements by petitioner and Kaiden’s mother that Kaiden regularly visits his mother, is at least minimally sufficient to raise a question about Kaiden’s residence with his father despite the conclusory statements by petitioner and the mother. 

Petitioner, on the other hand, has produced no documentary evidence, such as a driver’s license, voter registration or bills bearing the in-district address, that would indicate that he actually resides at the in-district residence and is not just the property owner.  The record also contains no evidence demonstrating Kaiden’s presence at petitioner’s residence or that his time is “essentially divided” between his parents’ households, other than petitioner’s and Kaiden’s mother’s conclusory statements (see e.g. Appeal of Franklin-Boyd and Graham, 45 Ed Dept Rep 33, Decision No. 15,251).

While the evidence from both parties is far from overwhelming, petitioner bears the burden of proof.  Consequently, on this record, petitioner has not established that respondent’s decision was arbitrary or capricious (see e.g. Appeal of Finnel and Morgan, 51 Ed Dept Rep, Decision No. 16,295).

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to the district on Kaiden’s behalf and to present any new information for the district’s consideration, particularly in light of the statements made by Kaiden’s mother that she and petitioner have agreed that Kaiden will no longer visit her on school days. 

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

THE APPEAL IS DISMISSED. 

END OF FILE