NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

As a final note, here is another recent decision from the Department of Education which will illustrate the issues regarding a change in residence. In summary, this is the issue facing parents in foreclosure and/or divorce. With respect to foreclosure:

1. If the school discovers that there has been a change of residence, the school has the option of excluding the child from the school. If it exercises that option, it also has the option to:

A. Permit the continued education of the child provided that the parents pay future tuition and reimburse for past tuition (which varies from district to district and can be high).

B. Exclude the child and start a court action for full reimbursement.

With respect to divorce, additional questions arise. The school of course has the same options as in foreclosure and can seek reimbursement (the liability again belonging to both parents) as set forth above. But what if the parents have consented to a parenting plan in which the child spends an equal amount of time at both residences? This must be addressed by attorneys for the spouses in the situation where such a parenting plan is adopted and the child is not attending a private education institution. And if the child is attending a public school and there is a change in residence but not a change in schools, the issue of a possible claim for reimbursement must be addressed in resolving the financial aspects of a divorce.

And what is interesting to note that in the following case, the issue was raised by an "anonymous report". This should alert parents that the "anonymous report" can be from a neighbor, an angry spouse, the school checking foreclosure notices, etc.

"Appeals of C.R., on behalf of her children B.R., M.R, B.R. and P.R., from action of the Board of Education of the Clarkstown Central School District regarding residency.

Decision No. 15,642

(August 20, 2007)

Feerick Lynch MacCartney, PLLC, attorneys for petitioner, Mary E. Marzolla, Esq., of counsel

Lexow, Berbit & Associates, P.C., attorneys for respondent, Susan Mills Richmond, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that her children are not district residents entitled to attend its schools tuition-free. Because the appeals present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.

Petitioner is the mother of two sets of twins. During the 2006-2007 school year, twins B.R. and M.R. attended first grade, and twins B.R. and P.R. attended fourth grade in respondent’s district.

From 1997 until 1999, petitioner and the children’s father lived at Tennyson Drive, Nanuet, within respondent’s district. The residence at Tennyson Drive was owned by petitioner’s sister and is divided into two apartments.

In 1999, petitioner and the children’s father married and purchased a home at Green Bower Lane in New City, outside respondent’s district. Petitioner claims the family lived at the Green Bower Lane residence until petitioner and her husband separated “informally” in 2001.

After the separation, petitioner claims that she and the four children moved back to Tennyson Drive to live with her sister and mother in the home’s 774 sq. ft. lower-level apartment. Petitioner claims that her husband continues to reside alone at the Green Bower Lane residence, that the children regularly visit him there and that these visits include dinners and sleepovers.

On February 13, 2007, respondent received an anonymous report that petitioner resided outside its district. Based on this information, respondent hired an investigator to conduct surveillance on both the Tennyson Drive and Green Bower Lane residences.

On February 27, 2007, the investigator observed petitioner and two of the children arrive at the Tennyson Drive residence at approximately 6:54 a.m. The children exited the house and boarded respondent’s school bus at approximately 8:13 a.m. At approximately 3:05 p.m., the two children boarded respondent’s school bus and arrived at the Tennyson Drive residence at 3:30 p.m. At 3:39 p.m., petitioner and all four children exited the Tennyson Drive residence and drove to the Green Bower Lane residence.

On March 1, 2007, the investigator observed petitioner’s car at the Green Bower Lane residence at approximately 5:35 a.m. At approximately 6:09 a.m., petitioner and two of the children left the Green Bower Lane residence and drove to Tennyson Drive. The children exited the Tennyson Drive residence and boarded respondent’s school bus at 8:10 a.m.

On March 13, 2007, at approximately 6:44 a.m., the investigator observed petitioner, her husband, and all four children leave the Green Bower Lane residence in petitioner’s car.

By letter dated March 21, 2007, respondent’s supervisor of student support and community services (“supervisor”) notified petitioner that the district had obtained information indicating that petitioner was not a district resident. The letter stated that if petitioner failed to produce evidence of residency by March 30, 2007, all four children would be excluded from respondent’s schools after that date.

By letter dated April 10, 2007, petitioner produced copies of several documents to support her claim of residency, including her driver’s license, electric and gas bills for Tennyson Drive from 2002 through 2007, her automobile insurance identification card for a policy issued March 30, 2007, and her automobile registration, which was dated April 5, 2007. Petitioner also submitted a deed dated April 2, 2007 in which her sister transferred one-half of the Tennyson Drive property to petitioner.

In addition, petitioner produced notarized documents from her sister and mother stating that petitioner and the children live with them at Tennyson Drive. Petitioner also submitted several letters to support her residency claim, including one from a neighbor at Tennyson Drive and another from a woman who administered a speech language evaluation to one of the children at the Tennyson Drive residence in 2003.

By letter dated April 17, 2007, respondent’s director of business services (“director”) affirmed the determination that petitioner was not a district resident and stated that the children would be excluded from respondent’s schools after April 25, 2007. This appeal ensued. Petitioner’s request for interim relief was granted on April 26, 2007.

On May 15, 2007, petitioner served respondent with a second appeal in this matter (“second appeal”). The second appeal presents similar issues of fact and law and includes additional information in support of petitioner’s residency claim, including affidavits from her husband, sister and mother, and receipts for painting and the installation of new windows at the Tennyson Drive residence.

Petitioner claims, inter alia, that she is a district resident and that her children are entitled to attend respondent’s schools tuition-free. Petitioner also seeks an award of costs and attorney fees.

Respondent claims that petitioner resides outside its district and seeks tuition reimbursement in the amount of $87,099.11. Respondent also urges that petitioner’s second appeal not be considered on the grounds that it is an improper attempt to introduce evidence intended to buttress the claims asserted by petitioner in her original appeal.

Education Law §3202(1) provides, in pertinent part:

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 statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). 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 petitioner seeks relief (8 NYCRR §275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Petitioner claims that after she and her husband entered into an “informal and amicable” separation, she and the children moved back to her sister’s Tennyson Drive residence. To support her claim, petitioner submits several documents that list Tennyson Drive as her address. However, several of these documents originated after respondent’s residency investigation began. For example, the insurance and registration on petitioner’s car are dated March 30 and April 5, 2007, respectively. In addition, the deed from petitioner’s sister transferring a one-half interest in the Tennyson Drive property to petitioner is dated April 2, 2007.

In the second appeal, petitioner includes affidavits from her husband, sister, and mother -– each supporting the claims made in petitioner’s original appeal. Petitioner also includes receipts dated July 24, 2006 and January 19, 2007 indicating that she paid for improvements made to the Tennyson Drive residence.

While petitioner’s documentation indicates that she uses Tennyson Drive as her mailing address and may have paid some utility and repair bills for that residence, they are not dispositive of petitioner’s residency, particularly in light of the district’s investigation. Respondent also submitted evidence that petitioner and her husband remain co-owners of the Green Bower Lane residence, for which petitioner claims a STAR exemption.

Further, in response to the second appeal, respondent submitted an affidavit from its investigator stating that he interviewed a neighbor of the Tennyson Drive address. The neighbor stated that, “on a daily basis,” petitioner brings the children to the Tennyson Drive residence, where they board respondent’s school bus in the morning; that the children ride the bus to Tennyson Drive in the afternoon; and that petitioner and the children “would leave in the early evening and return the next day.”

Respondent also submitted affidavits from three of the children’s teachers stating that they have each had difficulty reaching petitioner at the Tennyson Drive address. One teacher stated, “Every time I called the in-district house, [petitioner] was never home. The grandmother stated that [petitioner] would get back to me ... [N]either child was able to learn nor repeat back his/her address or phone number.”

Based on the record before me, I find that petitioner has failed to establish that her children are district residents entitled to attend respondent’s schools tuition-free. Accordingly, respondent’s determination is neither arbitrary nor capricious and will not be set aside.

Although the petitions must be dismissed on the record before me, I note that petitioner has the right to reapply to the district for admission on her children’s behalf if circumstances have changed.

With respect to petitioner’s request for costs and attorney fees, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

With respect to respondent’s claim for tuition reimbursement from petitioner in the amount of $87,099.11, I note that the Commissioner has historically declined to award tuition in residency appeals (Appeal of Crowley, 43 Ed Dept Rep 383, Decision No. 15,025; Appeal of Baronti, 42 id. 140, Decision No. 14,802; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613). Such relief should be sought in a court of competent jurisdiction (Appeal of Crowley, 43 Ed Dept Rep 383, Decision No. 15,025).

THE APPEALS ARE DISMISSED."