Appeal of R.G., on behalf of his children J.G. and H.G., from action of the Board of Education of the Smithtown Central School District regarding enrollment.

Decision No. 16,682

(October 14, 2014)

Lamb & Barnosky, LLP, attorneys for respondent, Lauren Schnitzer, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Smithtown Central School District (“respondent”) not to disenroll his children, J.G. and H.G. (“the students”), from the district’s schools.  The appeal must be dismissed.

Petitioner is the students’ father and resides in the Three Village Central School District (“Three Village”).[1]  By a Stipulation of Settlement dated December 2004, petitioner and his wife (the students’ mother) divorced.  Pursuant to the terms of the stipulation, the parents were granted joint legal custody of both children, with primary physical residence with their mother.

According to the record, the students’ mother resides in respondent’s school district where the students have been attending school.  By decision dated June 21, 2013, a Family Court referee modified the December 2004 stipulation.  The June 2013 order granted petitioner additional parenting time, resulting in his having two overnights per week and three weekends per month with the students; however, “[a]ll other provisions of the parenting schedule” previously agreed upon remained “in full force and effect.”

On August 5, 2013, petitioner telephoned respondent and requested that the students be withdrawn from the district so that they could attend Three Village for the 2013-2014 school year.  By letter dated August 5, 2013, the attorney for the students’ mother advised respondent’s superintendent that the mother did not consent to the students’ removal from respondent’s schools.  He attached both the 2004 stipulation and the 2013 court order.  The letter also stated that the students’ mother remained the “residential parent.” 

By letter to the superintendent dated August 6, 2013, petitioner’s attorney stated that, due to the June 2013 Family Court order, residential custody changed from the students’ mother to petitioner because, as a result of that order, petitioner “now cares for [the students] more than 50% of the time (children with Father 56%, children with Mother 44% of the time)”.  Petitioner’s attorney stated that, therefore, the students’ residence must be determined to be with petitioner in Three Village.  Petitioner’s attorney requested that respondent “cooperate with the withdrawal” of the students from its district and with their enrollment in Three Village. 

By letter also dated August 6, 2013, the attorney for the students’ mother responded, arguing that petitioner’s attorney was incorrect in stating that, based on the June 2013 Family Court order, petitioner was now the residential parent.  He stated that the June 2013 order did not include any change in custody, but only provided more parenting time for petitioner.  He further stated that, in any event, petitioner’s claim that he now cared for the students more than 50% of the time was not accurate. 

By letter dated August 27, 2013, respondent’s attorney replied, on behalf of respondent, denying petitioner’s request that respondent withdraw the students from its district without their mother’s consent.  The letter further stated that the provision in the June 2013 Family Court order granting petitioner additional parenting time did not modify the provision in the 2004 stipulation of settlement granting primary physical residence with the students’ mother. 

It appears from the record that the students have never attended Three Village.  It is unclear whether petitioner attempted to enroll the students in Three Village, and if so, how Three Village responded to said request.  As previously noted, Three Village is not a party to this appeal.

Petitioner claims that respondent’s determination is “flawed and incorrect.”  Petitioner contends that, pursuant to the June 2013 Family Court order, he has “overnight residential time with [the students] approximately 56% of the time” and, as a result, the students reside a majority of the time with petitioner in Three Village.  Petitioner asserts that he, therefore, has become the “de facto primary residential custodial parent.”  Petitioner also asserts that the students’ time is not “essentially divided” between the two households and that the students must be found to reside in Three Village.  Finally, petitioner maintains that respondent’s August 27, 2013 denial of his request did not comply with the procedural requirements of §100.2(y) of the Commissioner’s regulations, because it did not advise him of his right to bring this appeal.

Respondent asserts that the appeal must be dismissed for failure to join necessary parties as respondents in the appeal; specifically, respondent asserts that petitioner failed to join Three Village and the students’ mother.  Respondent contends that petitioner failed to establish that refusal to withdraw the students without their mother’s consent was arbitrary and capricious.  Respondent argues that, according to the documents presented to the district, petitioner does not appear to have been awarded more than 50% custody of the students by the June 2013 Family Court order and, in any event, the students’ mother retains primary physical custody of them.  Finally, respondent contends that it did not violate §100.2(y) of the Commissioner’s regulations because that section does not apply where a district, as here, does not conclude that the students are not district residents.

I must first address several procedural matters.  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).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

The appeal must be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

As relief, petitioner seeks to remove the students from respondent’s district where they currently reside with their mother and attend school.  Petitioner failed to name the students’ mother as a respondent in the appeal.[2]  However, were petitioner to prevail, the students’ mother would be adversely affected, as would her rights under the 2004 stipulation and 2013 court order.  Therefore, she is a necessary party and petitioner’s failure to join her as a respondent warrants dismissal of the appeal (cf. Appeal of a Student with a Disability, 46 Ed Dept Rep 60, Decision No. 15,441 [petitioner’s residency claim was consistent with a court order awarding physical custody and primary residence of the student to her, the student’s aunt, and was not adverse to the parents’ claims in the appeal]).

Even if the appeal were not dismissed for failure to join the students’ mother as a necessary party, it would 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).

In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Here, the December 2004 stipulation clearly sets forth that the students’ primary physical residence is with their mother.  The June 2013 Family Court order clearly states that, although additional parenting time was granted to petitioner, “[a]ll other provisions of the parenting schedule” previously agreed upon remained “in full force and effect.”  At the time it made its determination not to disenroll petitioner’s children, respondent considered both the December 2004 stipulation and the 2013 Family Court order.  In essence, through this appeal, petitioner appears to attempt to litigate a Family Court matter, over which I have no jurisdiction.  Indeed, the record indicates that the students’ mother has appealed the June 2013 Family Court order to the Appellate Division, Second Department, which is the appropriate forum for resolving such disputes.  In any case, I have reviewed the December 2004 stipulation and the 2013 Family Court order, upon which respondent based its determination, and on this record, I find that petitioner has failed to establish that such determination was arbitrary or capricious.  The appeal must, therefore, be dismissed.

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

THE APPEAL IS DISMISSED

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