Appeal of JAHAIRI COLLADO on behalf of her sons, JARIANNA and BERNARD COLLADO, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 17,918

(September 4, 2020)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

Rosa., Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Baldwin Union Free School District that her children, Jarianna and Bernard (“the students”), are not district residents.  The appeal must be dismissed.

Prior to the events leading to this appeal, petitioner, the students, and their father lived at an address located within respondent’s district.  Petitioner indicates that she and the students’ father separated in December 2018.  Petitioner further states that she and the students remained at the former marital residence until July 2019, when she entered into a lease for an apartment in respondent’s district (the “in-district address”).  Petitioner indicates that she and the students thereafter moved to the in-district address.

On or about September 6, 2019, petitioner submitted a change of address for the students, informing the district that the students moved to the in-district address.  In support of this contention, petitioner submitted a copy of her New York State driver’s license, a paystub, and a copy of a “Residential Lease with an Option to Buy,” each of which identified her address as the in-district address. Respondent enrolled the students based upon this information.

On or about October 24, 2019, respondent received a report that petitioner and the students did “not reside at the [in-district] address.”  Respondent conducted a search of public records, which indicated that the students’ father owned property location outside of respondent’s district in Freeport, New York (the “out-of-district address”).  Respondent thereafter hired an investigator to determine where the students resided.

The investigator conducted surveillance at both the in-district and out-of-district addresses on seven dates, October 25, 28, 29, 30 and 31, 2019, and November 15 and 18, 2019, beginning at 6:00 a.m. on each day.  The investigator observed the students on each of the seven mornings exiting the out-of-district address with an adult male and entering a car registered to petitioner and/or the students’ father.[1]  The investigator also observed three vehicles parked at the out-of-district address, each of which was registered to petitioner and/or the students’ father.  The students were not observed at the in-district address on any of the seven dates of surveillance.

By letter dated November 18, 2019, respondent’s director of pupil services (“director”) informed petitioner that the district had “reason to believe” that the students did not reside at the in-district address.  The director invited petitioner to meet with her on November 22, 2019 to discuss the students’ residency.

On November 22, 2019, petitioner, the students’ father and the director attended a residency meeting.  In an affidavit, the director avers that, at this meeting, petitioner stated that she and the students’ father “juggled the kids between them in which dad works nights and mom works during the days.”  The director further avers that petitioner “stated that the students would start coming out of the [in-district] address.”  The director also indicates that “petitioner was unable to recall” the street address of the in-district address, and that the students’ father “had to tell her the number of the house.”

By letter dated November 22, 2019, the director notified petitioner of her determination that the students were not district residents and would be excluded from its schools effective November 27, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 9, 2019.

Petitioner contends that the students live with her at the in-district address.  In support of this contention, petitioner submits a copy of her New York State driver’s license, a payroll statement, and a copy of a 12-month lease for the in-district address, beginning July 1, 2019, listing petitioner and the students as residents.  Further, petitioner submits a written agreement between her and the students’ father regarding residence, custody, visitation and support of the students.  Petitioner seeks a determination that the students are entitled to attend respondent’s schools as residents without payment of tuition.

Respondent contends that petitioner has not met her burden of establishing that the students reside at the in-district address.  Respondent argues that its surveillance evidence demonstrates that the students live at the out-of-district address and, therefore, its decision to exclude the students from its schools was neither arbitrary nor capricious.

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, rev’d 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).

Petitioner has not met her burden of proving that the students reside within respondent’s district.  While petitioner’s driver’s license, paystub and lease document are entitled to some probative value in assessing the students’ physical presence, this documentary evidence is not dispositive where contrary surveillance evidence exists (see Appeal of Mauro, 58 id., Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636).  As indicated above, on each of seven dates of surveillance, an investigator observed the students exit the out-of-district address and enter a vehicle registered to petitioner and/or the students’ father.  The students were not observed at the in-district address on any of these dates.  Petitioner did not submit a reply or otherwise explain respondent’s surveillance evidence.  Therefore, I find respondent’s surveillance evidence to be more probative of the students’ residency than petitioner’s documentary evidence.

Similarly, the custody agreement providing petitioner with “residential custody” of the student is not persuasive in light of respondent’s surveillance evidence.  This agreement, signed by petitioner and the students’ father, states that “[t]he parties shall have joint legal custody of the children with the Mother having residential custody.  The Father shall have liberal parenting time as agreed between the parties.”  However, the surveillance evidence described herein demonstrates that, the language of this agreement notwithstanding, the students were exclusively observed at the out-of-district address.  Therefore, in the face of contrary surveillance evidence, the agreement granting petitioner “residential custody” is not dispositive; petitioner remains obligated to demonstrate that the students, in fact, reside within respondent’s district (see Appeal of Leach, Jr., 59 Ed Dept Rep, Decision No. 17,653; Appeal of Reid, 45 id. 100, Decision No. 15,270).[2]

Finally, petitioner has failed to explain or rebut the statements attributed to her during the November 22, 2019 residency meeting suggesting that she did not reside within the district.  Respondent indicates that it did not find petitioner to be credible in light of such statements.  I will not substitute my judgment for that of local school officials on an issue of credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095).  Given the absence of such evidence, I find that the statements attributed to petitioner further support respondent’s determination that the students reside at the out-of-district address.

Therefore, on this record, I find that petitioner has not met her burden of proving that the students are district residents.  Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on behalf of the students 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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