Appeal of D.N., on behalf of G.N., from action of the Board of Education of the Pelham Union Free School District regarding residency.

Decision No. 18,408

(May 14, 2024)

Keane & Beane, P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Pelham Union Free School District (“respondent”) that his child (the “student”) is not a district resident.  The appeal must be sustained.

The student has attended respondent’s schools since 2014.  In November 2022, the district learned that the student’s address had changed and requested that petitioner provide an updated address.  Petitioner provided a new address within respondent’s district (the “in-district address”).

From February to April 2023, respondent conducted surveillance over 16 school mornings to determine the student’s residency.  The student was observed at her mother’s residence outside of the school district (the “mother’s address”) on the majority of school mornings surveilled.  By letter dated March 31, 2023, respondent notified petitioner that it believed the student did not live within the district and gave petitioner the opportunity to submit information regarding his residency status and the student’s right to attend respondent’s schools.  In response, petitioner submitted a utility bill and a tax return cover page bearing the in-district address as well as a notarized custody agreement between him and the student’s mother.  Pursuant to the custody agreement, dated March 15, 2008, petitioner and the student’s mother share joint legal custody of the student.  The agreement indicated that parenting time would “fluctuat[e] depending on work schedules and childcare.” 

By letter dated April 26, 2023, respondent advised petitioner of the district’s determination that the student did not reside in the district, was not entitled to attend the district’s schools tuition-free, and would be excluded from attendance after May 12, 2023.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 4, 2023.

Petitioner contends that the student resides with him at the in-district address.  Petitioner seeks a determination that the student is a resident of respondent’s district entitled to attend its schools tuition-free.

Respondent, relying upon its surveillance evidence, contends that the appeal must be dismissed because the student resides with her mother at the mother’s address.

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).

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).

Following commencement of this appeal, Family Court, Westchester County issued an order of custody dated August 17, 2023, modifying a prior order of custody and visitation dated November 25, 2008,[1] and awarding “physical custody” to petitioner, “who resides in Pelham, New York” (the “court order”).

The court order, which postdates the surveillance conducted by respondent, provides petitioner with physical custody of the student.  As such, I accept the court order as determinative of the student’s physical presence within respondent’s district (Appeal of K.R. and T.R., 63 Ed Dept Rep, Decision No. 18,316; Appeal of Foskey, 56 id., Decision No. 16,933 [accepting court order as determinative that provided petitioner with primary physical custody and shared legal custody]).  Even if respondent’s residency determination was reasonable in April 2023, its surveillance evidence is no longer relevant in light of the superseding court order (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Crawford, 48 id. 92, Decision No. 15,801).

However, I remind petitioner that, the court order notwithstanding, the student must actually reside with him to be considered a district resident.  Thus, respondent is free to collect further evidence of the student’s residency through surveillance, a home visit, or other means (see Appeal of Foskey, 56 Ed Dept Rep, Decision No. 16, 933).  Until that time, however, respondent must admit the student to its schools (Appeal of Booker, 56 Ed Dept Rep, Decision No. 16,995; Appeal of Clemons, 52 id., Decision No. 16,407).

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit the student to the schools of the district without the payment of tuition.

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