Appeal of J.G., on behalf of her child, from action of the Board of Education of the North Bellmore Union Free School District regarding residency.

Decision No. 18,486

(August 28, 2024)

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

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

Prior to the events described in this appeal, the student attend respondent’s schools based on her residence therein (the “in-district address”).  In 2022, the student’s parents initiated divorce proceedings.  Petitioner moved outside respondent’s district while the student’s father remained at the in-district address. 

In November 2022, petitioner and the student’s father agreed to a stipulation (“stipulation”) that awarded sole physical custody of the student to petitioner.  The stipulation also contained a parenting schedule by which the student spent most of her time with petitioner.  The parties thereafter modified this stipulation (the “amendment”) to provide petitioner and the student’s father with “joint residential custody.”  However, the amendment did not alter several provisions of the underlying agreement, including the parenting schedule.

Upon  review of the stipulation and amendment, respondent determined that the student was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 25, 2024, in part, to allow petitioner to enroll the student on a tuition basis.

Petitioner argues that the student is a resident of the district based on the language of the amendment.  She further asserts that it is in the student’s “best interest” to remain enrolled in respondent’s district.  She seeks a determination that the student is a district resident.

Respondent argues that the student is not a district resident because the stipulation and amendment, when read together, reveal that the student spends the majority of her time with petitioner.

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).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The amendment states that petitioner and the student’s father “share joint legal custody” and “joint residential custody” of the student.  The amendment further states that the parties’ parenting schedule is unaltered.  Under the parenting schedule, the student’s father has parenting time on Mondays and Thursdays “after school” until 7:30 p.m. and on “[a]lternate weekends,” which is defined as Friday evening through Sunday evening.[1]  Thus, in any given two-week period, the student spends approximately 3 out of 14 days with petitioner’s spouse, or 21 percent of the time. 

While the “essentially divided” standard contemplates some flexibility, an approximately 20/80 percent division of time falls short of that standard (Appeal of Gens, 61 Ed Dept Rep, Decision No. 18,136 [25/75 percent division not essentially divided]; compare Appeal of Prescod and Cumberbatch, 60 Ed Dept Rep, Decision No. 17,924).  The amendment’s characterization of the in-district address as “primary” does not give the student the right to attend respondent’s schools as a district resident because the parenting schedule shows that the student does not actually reside in respondent’s district.[2]  As such, respondent reasonably determined that the student’s residence remains with petitioner outside the district.

THE APPEAL IS DISMISSED.

END OF FILE