Appeal of R.K. and M.K., on behalf of their children, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 18,299

(June 29, 2023)

Law Office of Sean Sabeti, attorney for petitioners, Sean Sabeti, Esq., of counsel

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

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that their children (the “students”) are not district residents.  The appeal must be dismissed.

In September 2021 and July 2022, the students’ father enrolled the students in respondent’s district based upon his representation that he and the students resided within the district (the “in-district address”).  Prior to that time, the record indicates that both students resided at an address immediately outside respondent’s district (the “out-of-district address”).

According to respondent’s director of student registration (the “director”), the district was suspicious of petitioners’ claim of residency “based on [their] past history of attempting to enroll in the [s]chool [d]istrict” as non-residents.[1]  Respondent thus engaged an investigator to conduct a home visit at the in-district address.  The investigator observed 10-12 suits in each of the student’s bedrooms and 20-30 shirts wrapped from the dry cleaners, none of which appeared to fit either student.  The investigator further observed one toothbrush in an upstairs bathroom and one toothbrush in a downstairs bathroom.  Based on the investigator’s home visit observations, respondent engaged the investigator to conduct surveillance. On eleven separate occasions between October 11, 2022 and November 2, 2022, the investigator surveilled both the out-of-district address (where the students’ mother resides) and the in-district address (where the students’ father alleges he resides with the students).  The investigator observed the students leaving from the out-of-district address on multiple occasions.

By letter dated December 1, 2022, the director informed petitioners of his preliminary determination that the students may not be district residents.  The director requested that they submit proof of residency by December 16, 2022.  On December 13, the father submitted “airline documentation showing his extensive travel schedule ... [and] an updated custody agreement for his children.”

In a letter dated December 14, 2022, the director informed petitioners of his decision to allow the students to remain enrolled in the district’s schools.  Notwithstanding this decision, respondent remained concerned that the students were not district residents and arranged for further surveillance.

The investigator surveilled the out-of-district address on nine mornings in January and February 2023; on seven of those days, the students were seen departing the out-of-district address and driving to respondent’s high school.

In a letter dated February 13, 2023, the director informed petitioners of his decision that the students were not district residents and would, therefore, be excluded from the district as of February 28, 2023.  Petitioners appealed this decision to respondent,[2] which, by letter dated March 9, 2023, informed petitioners that their appeal was denied.  This appeal ensued.  Petitioners’ request for interim relief was granted on March 17, 2023.

Petitioners contend that the students reside with their father within respondent’s district pursuant to a separation agreement and are entitled to attend its schools without payment of tuition.  Respondent argues that its determination is supported by its surveillance evidence and other information in the record.

I must first address the scope of the record in this appeal.   On March 15, 2023, respondent served an affirmation in opposition to petitioner’s request for interim relief.  In response, on March 21, 2023, petitioners submitted an “attorney’s affirmation in reply” and a supplemental affidavit from the father.  On April 6, 2023, respondent served its answer upon petitioner.  A reply must be served within 10 days after service of the answer to which it responds (8 NYCRR 275.14 [a]).  Petitioners’ affirmation predates the answer and, thus, could not have responded to it.  Thus, I decline to accept the attorney affirmation into the record.[3]

Turning to the merits, 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).

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).

Petitioners have not met their burden of proving that the students are district residents.  In support of their claim, petitioners submit a copy of a document purporting to show the father’s purchase and ownership of the in-district address[4]; a separation agreement which indicates that the father has physical custody of the students at the in-district address; a paid receipt for boiler and refrigerator repair work performed at the in-district address; copies of travel documents purporting to show that the father traveled out of the country on three separate dates in 2022 and 2023; and documents from the father’s bank account, automobile finance company, and insurance company which identify his address as the in-district address.  However, respondent’s home visit (which did not reveal any of the students’ clothing in their closets) and surveillance evidence (which revealed the students leaving the out-of-district address, where their mother resides, on numerous occasions in 2022 and 2023) directly contradicts petitioners’ assertion that the students live with their father at the in-district address.  Petitioners’ documentary evidence, therefore, is unpersuasive (Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644).  Accordingly, petitioners have failed to meet their burden to prove that respondent’s residency determination was arbitrary and capricious.

In light of this disposition, it is unnecessary to address the parties’ remaining contentions. 

THE APPEAL IS DISMISSED.

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