Appeal of ELIZABETH RUIZ, on behalf of her son CARLOS A. VALDEZ, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 17,431

(July 5, 2018)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel

 

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that her son, Carlos A. Valdez (“the student”), is not a district resident.  The appeal must be dismissed.

At the time of this appeal, the student was an eleventh-grade student attending respondent’s New Rochelle High School.  While the dates are not entirely clear, the record indicates that the student began attending respondent’s schools during the 2009-2010 school year based on the representation that the student resided at an address within respondent’s district (the “in-district address”) along with his mother and grandmother, the homeowner.  Respondent previously questioned petitioner’s residence within the district during the 2009-2010 school year but later “rescinded” any attempts to exclude the student in a letter dated December 7, 2009. 

The record indicates that, at some point during the fall of 2016, respondent received anonymous information that the student may have been residing outside of respondent’s district at a location in Mount Vernon (the “out-of-district address”).  As a result, respondent initiated a residency investigation.  As part of this investigation, respondent conducted surveillance on approximately 50 occasions at both the in-district and the out-of-district addresses.  The surveillance was conducted in the mornings and evenings on both weekdays and weekends from November 2016 through June 2017.  In an affidavit, respondent’s director of Pupil Services (“director”) states that “[d]uring all of [the surveillance visits],” petitioner’s car was observed parked in the driveway of the out-of-district address.  A written surveillance report indicates that on eight weekday mornings from May 17, 2017 to June 7, 2017, the student was observed leaving the out-of-district residence with his father and driving to school.  The surveillance report further indicated that on the nights preceding these morning observations of the student, a car registered to petitioner was observed after 10:00 p.m. at the out-of-district residence.

By letter dated June 21, 2017, the director notified petitioner that she had received information indicating that petitioner did not live within the district and that, consequently, the student was ineligible to attend respondent’s schools.  The director requested that petitioner submit any information to support her claim of residency within respondent’s district.

In response, petitioner submitted several documents bearing the in-district address, including her 2015 and 2016 federal tax returns, vehicle insurance card, cable bill, water bill, several bank statements and her and her husband’s driver’s licenses.  Petitioner also submitted a custody order dated May 20, 2002 granting her primary physical custody of the student and “Affidavits of Residency” in which her husband, her mother and the student state that petitioner and the student reside at the in-district address. 

By letter dated September 1, 2017 respondent advised petitioner that, based on its residency investigation, it had determined that petitioner did not reside within the district, and consequently the student was ineligible to attend respondent’s schools.  The letter further indicated that the student would be excluded from school after September 18, 2017.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 26, 2017.

Petitioner asserts that she and the student reside within the district at a residence owned by her mother.  Petitioner also asserts that she and the student’s father were recently married, and that she and the student spend weekends, holidays and summer vacations at the student’s father’s out-of-district address.  Petitioner admits that it is a non-traditional arrangement, but asserts that it “works” for her family.  Petitioner further asserts that she and her family are searching for a new residence within respondent’s district to enable the family to reside together.  Petitioner requests a determination that the student is a resident of the district and, thus, entitled to attend its schools without the payment of tuition.

Respondent contends that petitioner has failed to meet her burden of proof, and that despite the documentary evidence submitted by petitioner bearing the in-district address, such documents are insufficient to overcome the surveillance evidence, which establishes the student’s physical presence outside of the district.

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

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 S.L., 57 Ed Dept Rep, Decision No. 17,187).  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 S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of T.P., 45 id. 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935).  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 S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

In support of her claim that she and the student reside within the district, petitioner submits significant documentary evidence bearing the in-district address.  Petitioner further explains that the family has a non-traditional living arrangement wherein she and the student live with her mother at the in-district address during the week, but that they spend weekends and summer vacations at the out-of-district address with the student’s father. 

Nevertheless, on this record, I find that petitioner has not met her burden of proving the she and the student reside at the in-district address.  Although petitioner submits documentary evidence bearing the in-district address, I note that the in-district address is owned by petitioner’s mother and, when weighed against the district’s surveillance evidence, such documentary evidence does not establish that she and the student actually reside at such address.  As noted above, the surveillance reports reveal that the student was observed exiting the out-of-district address on at least eight weekday mornings from May 17, 2017 to June 7, 2017.  In addition, on the dates that surveillance was performed at both addresses consecutively, petitioner’s vehicle was observed parked at the out-of-district address and no activity was observed at the in-district address.

Petitioner states that she and the student only stay with her husband at the out-of-district address “on the weekends, holidays and during the months of summer vacation.”  Petitioner further states that while she and her husband have been legally married for over a year, they live separately during the year.  However, this assertion is directly contradicted by the surveillance evidence, which observed the student being transported to respondent’s school from the out-of-district address on eight occasions during the school year on dates which were not holidays, weekends or dates during summer vacation.  Under these circumstances, I find petitioner's explanation set forth in the petition to be unpersuasive in light of the district's surveillance evidence. 

Petitioner also argues that she and the student’s father “have been following the agreement stated in [an attached] [o]rder of [c]ustody.”  This agreement merely provides, however, that petitioner has “physical custody of the child,” that the student “shall have visitation with his father, as the parties may agree upon,” and that “either parent may travel with the child for vacation periods.”  Thus, this custody order does not require a specific visitation schedule, such as weekends, holidays and summer vacations, as argued by petitioner.

Finally, petitioner complains that respondent did not conduct a home visit prior to excluding the student, and asserts that such a visit would have revealed that the student lives at the in-district address.[1]  While a home visitation may have yielded additional information, I do not find that respondent’s decision not to conduct such a visitation establishes the student’s residency or contradicts respondent’s surveillance evidence.  Thus, based on the record before me, I cannot conclude that respondent's determination that petitioner and her son are not district residents was arbitrary, capricious or unreasonable.

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

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on the student’s behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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