Appeal of S.V., on behalf of his son J.V., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,685

(November 17, 2014)

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

KING, Jr., Commissioner.--Petitioner appeals a determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that his son, J.V., is not a district resident and, therefore, is not entitled to attend the district’s schools tuition-free.  The appeal must be dismissed.  

In August 2013, petitioner enrolled J.V. in respondent’s district, based on his assertion that he lived in a house owned by his cousin in Baldwin, New York, within the district (“Baldwin address”).  As proof of residence, petitioner submitted a Parent Affidavit of Residency and two proofs of residency, including his bank statement listing the Baldwin address, and a statement establishing petitioner’s enrollment in Apex Technical School also listing the Baldwin address.  Petitioner also submitted a homeowner’s affidavit by his cousin attesting that petitioner lives at her residence at the Baldwin Address.  The affidavit did not indicate that petitioner’s son J.V. lives at that address. 

Thereafter, respondent initiated an investigation into petitioner’s residency.  Respondent obtained a copy of petitioner’s driver’s license and credit report which both reflect an address in Brooklyn, New York (“Brooklyn address”).  The investigation also included surveillance of the Baldwin address.  On September 19, 2013, respondent’s investigator visited the Baldwin address at approximately 6:30 a.m. and neither petitioner nor J.V. was present.  The investigator knocked on the door at approximately 6:45 a.m. and inquired whether petitioner or his son was present.  A male and female answered the door and informed the investigator that petitioner and J.V. were not there and that they could not provide a time when petitioner or J.V. would be home.  Shortly thereafter, the Director of Pupil Services (“director”) contacted petitioner to obtain more information about petitioner’s residency and to inquire why he and his son were not present at the Baldwin address on September 19, 2013.  According to the director, petitioner stated that he and his son had spent the night in Brooklyn and did not provide a clear answer when the director inquired as to the last time petitioner or his son had slept at the Baldwin address. 

By letter dated September 19, 2013, the superintendent notified petitioner of his determination that petitioner was not a district resident and that J.V. was not entitled to attend respondent’s schools.  Respondent conducted two additional home visits on the evening of September 30, 2013 and on the morning of October 1, 2013.  While petitioner was not observed at the Baldwin address on either of those days, J.V. was present there at 8:15 a.m. on October 1, 2013.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 10, 2013.

Petitioner claims that, although J.V. stays with his mother at the Brooklyn address on weekends, J.V. resides with petitioner in the basement of his cousin’s house at the Baldwin address.  Petitioner asserts that, therefore, J.V. is entitled to attend respondent’s schools.  Petitioner further contends that respondent’s investigation was inadequate.

Respondent contends that its determination that petitioner is not a district resident and that J.V., therefore, is not entitled to attend its schools tuition-free is in all respects proper.  Respondent asserts that, even if J.V. lives at the Baldwin address with petitioner’s cousin, which respondent argues is belied by the surveillance, there is no evidence that petitioner transferred total custody and control of J.V. to petitioner’s cousin. 

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 presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

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 failed to prove that he and J.V. reside within the geographical confines of respondent’s district.  While respondent’s surveillance is limited, it indicates that, on three different occasions – twice in the morning and once in the evening – in September and October 2013, petitioner was not observed at the Baldwin address, although J.V. was present on one of those occasions.  Petitioner has not submitted a reply or otherwise provided any evidence to explain or contradict such evidence.  Moreover, petitioner’s driver’s license and credit report list a Brooklyn address.  He also admitted staying at the Brooklyn address on one of the surveillance dates.  Petitioner submits only two documents, a bank statement and a handwritten statement from his school, listing the Baldwin address as his address.  In addition, he submits an affidavit from petitioner’s cousin that states that petitioner resides in his home at the Baldwin address but does not state that J.V. lives there. 

Additionally, petitioner has not demonstrated, or even alleged, a total and permanent transfer of J.V.’s custody and control to his cousin who resides in Baldwin.  Indeed, subsequent to the initiation of this appeal, respondent’s registrar contacted J.V.’s prior school of attendance in the Roosevelt Union Free School District (“Roosevelt”) and was informed that J.V. is currently enrolled and attending school in that district and was registered there by his mother.  Moreover, the registrar avers that she obtained a copy of J.V.’s mother’s credit report which listed an address in Roosevelt.  Petitioner, who claims that J.V. visits his mother in Brooklyn and doesn’t live at any address other than the Baldwin address, offers no explanation of J.V.’s enrollment in Roosevelt by his mother.

On this record, I am unable to conclude that petitioner has met his burden of proving that he resides in respondent’s district and I cannot conclude that respondent’s residency determination was arbitrary, capricious or unreasonable.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on his son’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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