Appeal of S.U., on behalf of his child, from action of the Board of Education of the Hicksville Union Free School District regarding residency.

Decision No. 18,062

(December 15, 2021)

Guercio & Guercio, LLP, attorneys for respondent, Bryan Georgiady, Esq., and Matthew A. Galante, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Hicksville Union Free School District (“respondent”) that his child (“the student”) is not a district resident and, therefore, not entitled to attend its schools without payment of tuition.  The appeal must be sustained.

Prior to the events giving rise to this appeal, petitioner resided at an address within respondent’s district (the “in-district address”) with the student, the student’s sibling, and the student’s mother, who is not a party to this appeal.  The student attended respondent’s schools as a resident student.  Sometime thereafter, petitioner moved to an address located outside of respondent’s district (the “out-of-district address”), while the student’s mother continued to reside at the in-district address.  In March 2016, petitioner and the student’s mother commenced a proceeding in Family Court regarding custody of the student.[1]

On September 21, 2016, Family Court, Nassau County, issued a “final custody [and] parenting time order” (“the final order”), which awarded petitioner and the student’s mother “joint residential and joint legal custody” of the student.  The final order dictated that, “solely for the purposes of school and a certification for medical insurance,” the in-district address would “be deemed to be” the student’s residence.  In addition, the final order awarded the student’s mother “final decision[-]making power in regard to the education decisions to be made on behalf of the [student].”[2]

On December 10, 2018, petitioner filed a family offense petition against the student’s mother in Family Court, seeking “temporary full custody” of the student and an order of protection against the student’s mother.  Petitioner alleged that the student’s mother had engaged in “harassment” and “reckless endangerment” by, among other things, throwing “a metal spoon” at the student and “threatening to throw [the student] out of her home.”  Petitioner further indicated that the student’s mother had previously thrown the student out of the in-district address in January 2017, which was a “horrible experience” for the student that resulted in petitioner picking the student up “with a back pack and her [musical instrument but] no clothes or personal belongings.”

On March 18, 2019, Family Court, Nassau County, issued a “modified temporary order of custody/visitation/parenting time” (“the temporary order”), which awarded petitioner “temporary residential” custody of the student and directed that petitioner and the student’s mother continue to exercise joint legal custody of the student.[3]  The temporary order directed that petitioner was “responsible for taking [the student] to school,” but did not affect the designation of the in-district address as the student’s residence for school purposes, as set forth in the final order.  The temporary order indicated that it would “remain in effect until further order of the court or upon disposition of the current [custody] petition if no final order in this case [were] made.”

On or about September 4, 2019, respondent’s director of pupil personnel services (“PPS director”) “received correspondence” from the student’s mother, indicating that the student was living with petitioner at the out-of-district address.  In an affidavit submitted with this appeal, the PPS director indicates that the student’s mother “made multiple telephone calls to the [d]istrict providing the [same] information as in her correspondence.”  Based on this information, the district scheduled a meeting to determine the student’s residency status (see 8 NYCRR 100.2 [y]).

The district held a hearing, presided over by the PPS director, over several dates between September and November 2019.  During the hearing, petitioner testified that the student had been living with him full-time since “about January or February 2019.”  He indicated that the student resided with him “[f]or the most part” but sometimes “stay[ed] with friends” within respondent’s district when she had to “come[] to school earlier.”  He further stated that, although the student kept “some clothes” and “[b]asic property” at the out-of-district address, “[e]verything else” remained at the in-district address.  Petitioner testified that, pursuant to the final order, he could not “take [the student] and move [the student] to another school district without being held in contempt of court.”  He asserted that he was “actively looking for rental property” in respondent’s district and intended to relocate to respondent’s district with the student “[a]s soon as [he] f[ound] something” he could afford.

An attorney representing petitioner in Family Court also testified at the hearing and explained that petitioner had several petitions pending in Family Court to modify the final order and to find the student’s mother in violation thereof.  However, the attorney indicated that the final order was “still in effect[,] ... [e]xcept as the temporary order modifie[d]” it.  The attorney stated that the temporary order “could be ... modified” at any upcoming court date in the pending Family Court proceedings.  The attorney further asserted that the district could “make a determination based on what’s presented today and then tomorrow it would be different.”

Petitioner’s Family Court attorney also testified that there was “a history ... of domestic violence against the [student], [with] the mother perpetrating the domestic violence,” and that this abuse had “resulted in an order of protection from [the student] against her mom.”  The attorney indicated that “the best way to make peace was to issue [the] temporary order.”  The attorney explained that, although the student was residing with petitioner full-time pursuant to the temporary order, petitioner “still ha[d] a child support obligation that he [was] paying to [the student’s mother]” for the student.  The attorney testified that petitioner hoped to obtain orders in the pending Family Court proceedings that would grant him full, permanent custody of the student and terminate his child support obligation to the student’s mother; this, in turn, would facilitate petitioner’s ability to obtain housing within respondent’s district.

In a decision dated November 12, 2019, the PPS director determined that the student was not a “legal resident” of respondent’s district and “not legally entitled” to attend the district’s schools because she had “been residing exclusively” with petitioner at the out-of-district address.  This appeal ensued.  Petitioner’s request for interim relief was granted on November 27, 2019.

Petitioner argues that the student is “temporarily living with [him]” pursuant to the temporary order and that “the adjudication of the [pending] Family Court matters” will “affect [the student’s] residency.”  Petitioner further asserts that the “temporary order does not undo the final order,” which designates the in-district address as the student’s residence for purposes of school.  Petitioner thus contends that he would “be violating the final custody order” if he were to enroll the student in the school district where he resides, which would make him “vulnerable to criminal consequences” such as “contempt of a court order.”  Petitioner suggests that respondent “should hold any decision regarding [the student’s] residency in abeyance until the Family Court pending petitions are resolved because they directly affect a residency determination.”  For relief, petitioner seeks a determination that the student is a resident of respondent’s district entitled to attend its schools without payment of tuition.

Respondent argues that it acted appropriately and in accordance with the law in determining that the student is not a district resident entitled to attend its schools without payment of tuition.[4]

Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; 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 (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Helms, 36 id. 95, Decision No. 13,668).  In cases where parents have joint custody and the child’s time is essentially divided between the parents’ respective households, the parents may designate the child’s residence for purposes of Education Law § 3202 (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; Appeal of Cortes, 37 id. 114, Decision No. 13,818).  However, in the absence of proof that the child’s time is indeed divided between both households, the child’s residency must be determined by the traditional test requiring physical presence in the district and intent to remain (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).

Where a court of competent jurisdiction has legally transferred custody of a child, the Commissioner will accept the court’s order as determinative of the child’s residency for purposes of Education Law § 3202, absent proof that the child does not, in fact, reside with the court-ordered custodian (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Naab, 48 id. 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801).  Any objection to the legitimacy of a court-ordered transfer of custody should be made before the court itself, not in an appeal to the Commissioner of Education (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Naab, 48 id. 484, Decision No. 15,924; Appeal of Crawford, 48 id. 92, Decision No. 15,801; Appeal of D.R., 45 id. 550, Decision No. 15,412).

Once established, residency is retained until a new permanent residence is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Temporary absence from a school district does not necessarily relinquish residency (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Where a petitioner asserts than an out-of-district living arrangement is merely temporary, the Commissioner will consider evidence regarding the petitioner’s continuing ties to the community and efforts to return to the district (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

On this record, petitioner has established that the student’s absence from respondent’s district is temporary.  Although the student resides with petitioner at the out-of-district address, this arrangement is dictated by the temporary order, which granted petitioner only “temporary residential” custody of the student.  The temporary order did not supersede the final order or modify the portion that designated the in-district address as the student’s residence “for the purposes of school” and awarded the student’s mother “final decision making power in regard to educational decisions” concerning the student (cf. Appeal of W.M., 52 Ed Dept Rep, Decision No. 16,396 [concluding that a custody order that “specifically stated that it supersede(d) all prior custody orders” was “determinative for residency purposes”]).

Additional evidence in the record supports a conclusion that the student’s absence from respondent’s district is temporary.  Petitioner testified at the residency hearing that the bulk of the student’s possessions remain at the in-district residence with the student’s mother and that the student sometimes stays overnight within respondent’s district at friends’ homes.  In addition, the record reflects that the student’s sibling continues to attend respondent’s schools as a district resident.  I find that these facts establish petitioner and the student’s continuing ties to the community (see generally Appeal of Goldman, 48 Ed Dept Rep 224, Decision No. 15,488). 

Petitioner also testified that he has made efforts to return to respondent’s district with the student, stating that he is “actively looking for rental property” within the district and hoped to relocate “[i]mmediately” upon being relieved of his child support obligation and awarded permanent custody of the student by Family Court.[5]  Although such assertions alone may be insufficient to establish petitioner’s efforts to return (see e.g. Appeal of P.L., 40 Ed Dept Rep 84, Decision No. 14,427; Appeal of Helms, 36 id. 95, Decision No. 13,668), his testimony is entitled to greater weight given the circumstances that caused the student to temporarily leave respondent’s district and the attendant Family Court proceedings.  Accordingly, this appeal is distinguishable from prior decisions of the Commissioner cited by respondent (cf. Appeals of Students Suspected of Having Disabilities, 54 Ed Dept Rep, Decision No. 16,725 [finding that the petitioner had “produced no documentary evidence that would indicate that she (was) only ‘temporarily’ residing outside the district” (emphasis added)]).

The nature of the pending Family Court proceedings further supports petitioner’s request for relief.  Petitioner’s attorney testified at the residency hearing that petitioner had several relevant proceedings pending before Family Court and that Family Court could alter the terms of the temporary order – and thus the student’s living situation – at any time during the pendency of such proceedings.  The attorney further explained that the final order was “still in effect[,] ... [e]xcept as the temporary order modifie[d]” it.  The attorney additionally testified that the student’s mother was physically violent toward the student and characterized the temporary order as an effort to “make peace.”  Similarly, petitioner indicates in the petition that “[r]ather than pursue abuse and neglect or even an order of protection” after he filed the family offense petition against the student’s mother in December 2018, he, the student’s mother, and the student’s attorney for the Family Court proceedings “entered into an [o]rder whereby [the student] was to temporarily reside” with petitioner.  I find that this evidence further establishes the temporary nature of the student’s present living situation (Appeal of Dahan, 37 Ed Dept Rep 103, Decision No. 13,815 [appeal sustained where the record supported the petitioner’s claim that she left the respondent’s district “temporarily since she perceived her husband to be a threat to her and her children”]).

Ultimately, based on the totality of the record before me, I find that the student’s permanent residence continues to be at the in-district address with her mother, pursuant to the final order.  I further find that the student’s residence with petitioner at the out-of-district address presently qualifies as a temporary absence given the unique circumstances of this appeal – namely, the fact that the student resides with petitioner pursuant to the temporary order and the fact that numerous proceedings relevant to this appeal remain pending in Family Court (cf. Appeal of F.S. and J.S., 60 Ed Dept Rep, Decision No. 17,901 [rejecting the petitioners’ assertion that their grandchildren were temporarily residing with them outside of the respondent’s district where there was “nothing in the custody order, or elsewhere in the record, to support this contention”]).  Accordingly, I find that, on this record, the student is entitled to continue attending respondent’s schools as a district resident for the duration of her temporary absence.[6]

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit the student to continue attending its schools without payment of tuition for the duration of her temporary absence from the district as described herein.

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