Appeal of W.B., on behalf of his sons W.B. and J.B., from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 16,662

(September 2, 2014)

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Williamsville Central School District (“respondent”) that his sons, W.B. and J.B. (“the students” or “the children”), are not district residents.  The appeal must be dismissed.

The record indicates that petitioner’s older son, W.B., has attended school in the district since he enrolled in pre-kindergarten in 2009 using petitioner’s in-district address.  Petitioner claims that in April 2011, the students’ mother moved out of the district and began to live separately from petitioner and the children.  According to petitioner and the mother’s unsworn statements included with the petition, the students spend weekdays with their father in the district and Friday, Saturday and Sunday each week with their mother at her residence outside of the district.

In or about January 2014, one of the students (J.B.) allegedly told the school principal and other school personnel that he did not reside at petitioner’s in-district address, which is his grandmother’s house.  Shortly thereafter, the district conducted surveillance at the in-district residence and at the mother’s out-of-district residence.  The district’s surveillance took place over eight school days and was conducted by two separate private investigators.  As discussed below, despite the statements to the contrary submitted by petitioner in this appeal, the surveillance revealed that the students spend some weeknights with their mother at her out-of-district residence.

There is conflicting evidence in the record regarding when the students’ mother moved out of the in-district residence.  Petitioner states that he and his wife “separated” in April 2011.  The students’ grandmother’s unsworn statement states that the mother moved out in April 2011 and then moved back in “briefly” in August 2013.  Petitioner’s sister’s unsworn statement explains that she moved into the in-district residence with her children in September 2014 and the student’s mother moved out of the grandmother’s house again at that time.  The mother’s unsworn statement also states that she “separated” from her husband in April 2011.  There is no legal separation agreement included as part of the record, nor is there a legal custody agreement or any reference to such documents. 

Surveillance began on Tuesday, November 26, 2013.  It was observed on that day that the students’ mother drove to petitioner’s in-district residence at 8:30 p.m., picked up the children and drove them back to her out-of-district residence.  Through further surveillance on weekdays, respondent’s investigator observed the students spending weeknights with their mother at her out-of-district address and observed the children being driven to respondent’s school in the morning by their mother from her out-of-district residence. 

On February 5, 2014, respondent’s Coordinator of Student Services (“coordinator”) sent a letter to petitioner and the students’ mother at the in-district address, stating that it had come to her attention that the students’ “primary residence” might not be within the district.  The letter stated that the coordinator had been designated by the board of education to make a residency determination, and informed petitioner and the students’ mother that they had until 3:00 p.m. on February 14, 2014 to submit information showing that the children’s address was within the district.  

By letter dated February 24, 2014, the coordinator informed the students’ mother of her determination that the students were not district residents.  The coordinator stated that, in making her determination, she reviewed “all of the information gathered including the documents you provided”[1] and that her decision was based on surveillance evidence conducted at both the in-district and out-of-district residences which indicated that the students “originate” from the out-of-district address, rather than the in-district address, “when in attendance” at school.  The letter stated that the students would be excluded from school beginning on March 10, 2014 and informed their mother of her appeal rights pursuant to Education Law §310.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 21, 2014.

Petitioner argues that the students live within the district and intend to live there for “at least the next two years.”  Petitioner asserts that the students visit their mother outside the district on Fridays, Saturdays and Sundays only, and live with petitioner and extended family the rest of the week within the district.  Petitioner includes unsworn statements from three people, including one from his mother stating that she and petitioner co-lease the in-district residence.[2]

Respondent argues that the appeal must be dismissed because petitioner’s pleadings are not verified or notarized in violation of the Commissioner’s regulations.  Respondent also asserts that the petition must be dismissed for defective service because the affidavit of personal service is not notarized. 

Respondent argues that petitioner has failed to prove that it acted arbitrarily and capriciously in determining the students were not residents.  Respondent claims that its investigation revealed that the students do not live within the district, but rather live with their mother outside of the district.  Respondent argues that the “sole reason” petitioner is alleging the students reside in the district is to take advantage of the district’s schools. 

First, I must address several procedural matters.  On or about May 15, 2014, petitioner filed a notarized letter with my Office of Counsel after all pleadings had been filed in this appeal.  Although it was not labeled, it appears that petitioner, who is not represented by an attorney, intended it as in the nature of a reply.  Respondent objects to my consideration of this document.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Petitioner’s reply addresses only two issues, neither of which are responsive to new material or any affirmative defenses contained in respondent’s answer.  Therefore, I have not considered this document.

     Next, respondent asserts that the petition must be dismissed for lack of verification.  However, the petition submitted to my Office of Counsel was both verified and notarized.  Although petitioner should have included a completed copy of the verification with the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and my Office of Counsel received a verified petition (see Appeal of Carangelo, 49 Ed Dept Rep 217, Decision No. 16,006).  Likewise, the affidavit of personal service attached to the petition and received by my Office of Counsel was properly notarized (cf. Appeal of Grant, 42 Ed Dept Rep 184, Decision No. 14,816).  Therefore, I will not dismiss the appeal for improper verification or defective service.

Nevertheless, the appeal must be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part, as follows:

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. 337affd, 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 this record, petitioner has not established that he and his wife have joint custody and the children’s time is essentially divided between the two households, so that residency is thus determined by the traditional test of physical presence in the district and intent to remain there (see Appeal of Balaj, 53 Ed Dept Rep, Decision No. 16,585).  In this case, although petitioner asserts that he and the students’ mother are separated and that the students only live with their mother Friday through Sunday of each week, he submits no legal separation agreement or custody order in this appeal and there is no indication that such documentation exists. 

Further, respondent’s surveillance evidence supports the finding that the students reside with their mother outside the district.  The record contains a sworn affidavit from both of the private investigators who conducted surveillance for respondent, as well as the surveillance reports.  Surveillance was conducted on seven weekdays in November and December 2013, as well as on January 6, 2014.  Surveillance was conducted at different times at both petitioner’s in-district residence and the student’s mother’s out-of-district residence.  According to the affidavits and reports, on Monday, December 9; Tuesday, December 10; and Friday, December 20, 2013, the students were seen leaving the mother’s out-of-district residence in the morning and being driven to school.  Moreover, on Tuesday, November 26, 2013, the students’ mother was observed picking the students up at petitioner’s home in the district at 8:40 p.m. and driving them to her home outside the district, where they arrived at 9:03 p.m.  Although petitioner claims in the petition that the students reside with him during the week, and spend weekends with their mother, he offers no explanation for the surveillance reports which clearly contradict his claims.  The students were observed, on multiple occasions, leaving the mother’s out-of-district residence in the morning on a school day and being driven to their school, thus indicating they had spent weeknights there.  The students were also observed leaving petitioner’s in-district residence at night with their mother and being driven to her out-of-district residence on a weeknight.  Petitioner submits no evidence to rebut or otherwise explain the surveillance evidence (see Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,552; Appeal of Balaj, 53 id., Decision No. 16,585). 

In light of the paucity of the evidence submitted by petitioner, and the fact that he provides no explanation for the surveillance evidence submitted by respondent, I cannot conclude that he has carried his burden of proof in this case.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on his children's behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

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