Appeal of MARCHIA GAYLE, on behalf of her son CHRISTIAN BARRETT, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,650

(August 18, 2014)

Ingerman Smith, L.L.P., attorneys for respondents, Julie L. Yodice, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges the determination of the Baldwin Union Free School District ("respondent") that her son Christian is not a resident entitled to attend its schools tuition-free. The appeal must be dismissed.

Petitioner, Christian’s mother, sought to enroll him in the district’s kindergarten program on or about September 4, 2013 for the 2013-2014 school year by submitting a “Registration Questionnaire” to the district.  Petitioner states in her Registration Questionnaire that she lives with her son’s uncle and aunt and a cousin at an address within respondent’s district (“in-district residence”) since August 1, 2013.  The Registration Questionnaire also listed petitioner’s out-of-district former address in Hempstead, New York (“Hempstead residence”).  Respondent’s registrar obtained a copy of petitioner’s credit report, dated October 9, 2013, which listed petitioner’s address as the Hempstead residence.  Based on this information respondent conducted surveillance of both the in-district and Hempstead residences on October 10, 11, 15, 16, and 17, 2013.[1]  This surveillance revealed that neither petitioner nor her son was seen at the in-district residence.

By letter dated October 22, 2013, petitioner was notified of questions involving her and her son’s residency and a meeting was held on October 28, 2013 with petitioner, her alleged landlord,[2] respondent’s director of pupil services and respondent’s registrar.  At this meeting, petitioner stated that she spends nights at her “boyfriend’s house” located at the Hempstead residence and that she lives at the in-district residence and will not stay overnight at the Hempstead residence anymore.  By letter dated October 29, 2013, petitioner was informed that her son was not eligible to attend respondent’s schools tuition-free and that he would be excluded from attendance on November 1, 2013.  On October 31, 2013, petitioner submitted another Registration Questionnaire and included additional information.  By letter of the same day, respondent upheld the earlier determination and denied petitioner’s request for registration.  Petitioner commenced this appeal on November 4, 2013. Petitioner's request for interim relief pending a determination on the merits was granted on November 13, 2013.

     Petitioner seeks a determination that her son is currently a resident of respondent’s district and is entitled to attend its schools without payment of tuition.  Respondent contends that petitioner fails to state a claim upon which relief can be granted.  Respondent asserts that its determination to exclude petitioner’s son was “well founded” and based on surveillance, petitioner’s failure to provide “dispositive proof of residence” to the district, and her familiar relationship with her landlord.  Respondent argues that petitioner has failed to establish physical presence within the district or that there has been a legal transfer of custody of her son to another individual.

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).

 In support of her son’s residency within the district, petitioner submits a sworn affidavit from her landlord.  He states that petitioner rents a room for 500 dollars a month in their home (the in-district residence) and resides there with her son.  The landlord further states that he attended the October 28, 2013 residency meeting and at that meeting he asserted petitioner and her son live in the in-district residence and on the nights in question petitioner spent them at her boyfriend’s home (the Hempstead residence).  The landlord further stated at the meeting that since her residency has been called into question, petitioner and her son have spent every night at the in-district residence.  Additionally, petitioner submits a sworn letter from the landlord’s wife, stating that petitioner is her tenant, that petitioner and her son reside at the in-district residence, and petitioner pays monthly rent.

Furthermore, petitioner submits a signed lease for a term commencing on August 1, 2013 naming both she and her son as “occupants;” receipts for the months of August, September and October rent payments (including a security deposit); and various bills, statements, and a driver license all of which state petitioner’s address as the in-district residence.  Petitioner’s driver license was issued August 14, 2013, about two weeks into the tenancy of her lease and her bills and statements are dated September to October of 2013.  The lease and the other documentary evidence purportedly support petitioner’s allegation in the petition that she has recently changed her residence and has been residing at the in-district residency for approximately three months. 

Respondent contends that petitioner has failed to prove that she and her son permanently reside the in-district residency, relying primarily on surveillance evidence.  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).

Respondent’s investigators conducted surveillance on five occasions at both the in-district residence and the Hempstead residence, during the mornings of October 10, 11, 15, 16, and 17, 2013.  Petitioner and her son were not seen at the in-district residence on any of these dates.  Respondent’s surveillance on the Hempstead residence showed petitioner and her son exiting the building on three dates -- October 10, 11, and 17, 2013.  On the two remaining dates, the surveillance did not observe petitioner but rather an “adult male” who left the Hempstead residence with petitioner’s son.

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).  I find petitioner has not met her burden. 

Petitioner has failed to refute the above mentioned surveillance by respondent.  In her petition, petitioner states, in part “that on the dates that [her son] was observed leaving the Hempstead address I had spent the night with my boyfriend who resided at that address [sic].”  Petitioner did not claim these nights were unusual or due to special circumstances.   In fact, after her residency was questioned, only then does petitioner assert “that now that I am aware that my spending overnights in Hempstead and leaving from there with [her son] for school is an issue, I will no longer do so.”  I note that petitioner submits no reply to contradict or further explain respondent’s surveillance evidence.

Petitioner has submitted documentary evidence and explanations strongly implying a future intention to relocate to the in-district residence.  However, she has failed to provide sufficient evidence to prove her and her son’s current one and only legal residence is within the boundaries of respondent’s district.  Therefore, based on the record before me, I find that petitioner has failed to establish actual physical presence in the district.  Accordingly, respondent’s determination is neither arbitrary nor capricious and will not be set aside.

While the appeal must be dismissed, I note that petitioner may reapply to the district for admission on her son’s behalf at any time and may present for respondent’s consideration any new information bearing on the question of residence.  In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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