Appeal of L.S. and R.S., on behalf of their child, from action of the Board of Education of the Orchard Park Central School District regarding residency.

Decision No. 18,331

(August 21, 2023)

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal a determination of the Board of Education of the Orchard Park Central School District (“respondent”) that their child (the “student”) is not a district resident entitled to attend the district’s schools tuition free.  The appeal must be dismissed.

In September 2022, petitioners registered their child in respondent’s district, indicating that they resided at a location within the district (the “in-district address”).  On January 12, 2023, mail sent to the in-district address was returned to the district by the United States Post Office.

On March 1, 2023, the assistant principal spoke with petitioner R.S. by phone, who indicated that she and petitioner L.S. were separating.  During this call, petitioner R.S. indicated that petitioner L.S. remained at the in-district address and she was temporarily living at a location outside of the district (the “out-of-district address”).  Petitioner R.S. further indicated that the student only saw petitioner L.S. for “a couple of hours a week.” 

In a letter dated March 14, 2023, respondent’s director of student services informed petitioners of the district’s suspicion that they did not reside within the district.  He invited petitioners to submit proof that they resided therein.  Petitioner R.S. emailed the director approximately two weeks later, indicating that the student was residing at a location outside of the district and visited petitioner L.S. at the in-district address “for a few hours” two days per week, every Friday “overnight,” and “every other weekend [from] Friday night-Sunday afternoon ....”

In a letter dated April 13, 2023, respondent’s superintendent informed petitioners of his determination that the student did not reside in the district.  This appeal ensued.

Petitioner argues that their visitation schedule and familial circumstances are in flux.  She seeks a determination that the student is a district resident eligible to attend respondent’s district without payment of tuition.

Respondent argues that the statements of petitioner R.S. and the visitation schedule she submitted demonstrate that the student does not spend sufficient time in the district to be considered a district resident.  Respondent contends that petitioners have otherwise failed to meet their burden of proving that the student is a district resident.

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 student resides within the district.  Based on the statements and visitation schedule provided by petitioner R.S., I cannot find that the student’s time is essentially divided between the in- and out-of-district addresses.  While petitioner asserts on appeal that the student spends “2 to 3 days a week” at the in-district address, she has not produced any proof of this contention, such as an updated visitation schedule.  Therefore, the appeal must be dismissed.

Nevertheless, I am compelled to make two observations.  First, respondent excluded petitioners’ child in short order following their separation.  Districts should afford families a reasonable time in circumstances such as these, where “[i]t is reasonable to assume that ... students d[o] not observe their typical living arrangements ...” (Appeal of J.R., 62 Ed Dept Rep, Decision No. 18,193).  Second, if the student’s circumstances change—such as a decision by petitioners for him to essentially divide his time between the in- and out-of-district addresses—petitioners may reapply to respondent’s district for admission.

THE APPEAL IS DISMISSED.

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