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School District Residency Investigations

Simultaneously Protecting Taxpayer Dollars and Students Rights

Protecting taxpayer dollars is one of the many responsibilities of a New York State School Superintendent. Not long ago this task was relatively straightforward and simple.

Formerly, when a new student was attempting to register in the local school system, the school district was permitted to defer the enrollment of a child until adequate documentation was provided to support a determination that the student resided within the district’s boundaries.

Things have changed however. In June 2015, the New York State Board of Regents adopted permanent regulations that significantly altered the process by which districts must make determinations regarding student enrollment and residency. The new regulations are described in industry jargon as “Admit First, Then Ask”, and are more clearly defined below:

Entitlement to attend school pursuant to education law §3202(1):

A person over five (5) and under twenty-one (21) 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.

[New Law] - Availability of District’s Residency Procedures

Districts must make publicly available:

Enrollment forms
Enrollment procedures
Instructions
Requirements for determination of residency and age
Non-exhaustive list of the forms of documentation that may be submitted to the district by parents, persons in parental relation or children, as appropriate.
[New Law] - Timing of enrollment

When a parent/person in parental relation/child, as appropriate, requests enrollment:

The child shall be enrolled and begin attendance on the next school day or as soon as practicable.
Discussion:

The timing of enrollment clause in the new regulations is the most substantial change to the former practice of disallowing admittance until residency can be proven. School districts are no longer allowed to bar the admittance of a child into the school district until residency has been proven. Now, the child will be admitted even if residency has not been immediately established.

It should be noted that the new regulations make it clear that they are not to be construed to change or shift the burden of proof away from the parent/guardian to establish and proof residency through physical presence as an inhabitant of the school district and Intent to reside in the district.

INVESTIGATION OF NON RESIDENCY

Examples of evidence of non-residency

- Telephone number that is in an exchange outside the district.
- PO Box as a mailing address
- Mailing address outside the district
- Statements from students that they do not reside where their parents claim
- Statements from neighbors that the family does not reside where parents claim
- Admissions that the sole basis for students residing with non-parental guardians is to take advantage of the schools in the district
- Parents driving children to and from school rather than availing themselves of bus pick-up
- Proof that children reside with non-parental guardian only on school days and reside with parents outside of the district on the weekends

Surveillance to determine true residency:

Surveillance is not necessarily solely conclusive of residency. Appeal of Klipper, 43 Educ. Dep’t Rep. 95, Decision No. 14,932 (2003). Rather, it is an important component to consider when viewing the totality of circumstances.

Surveillance at Beginning of School Year:

Surveillance undertaken for the first few days of the new school year is not dispositive. Appeal of Seger, 42 Educ. Dep’t Rep. 266, Decision No. 14,849 (2003)

Surveillance on Both Residences:

Surveillance should be conducted on both ‘residences’ (in‐district and out‐of‐district). See, e.g., Appeal of Smith, 44 Educ. Dep’t Rep. 66, Decision No. 15,100 (2004). Appeal was sustained where there were four occasions during a two week period and a fifth surveillance after commencement of an appeal to the Commissioner and “[o]n no occasion did the investigator observe the [in‐district] address, the address at which petitioner maintains she has continuously resided.” As such, the Commissioner found that the surveillances were not inconsistent with petitioner’s explanation that the children spent two to three nights per week at the out‐of‐district residence. See also Appeal of Mendez, 44 Educ. Dep’t Rep. 6, Decision No. 15,077 (2004).

Number of Times and Time of Day Surveillance is conducted:

While there is no definitive number of times/time of day surveillance must be conducted the following cases provide some guidance:

Appeal of St. Villien, 44 Educ. Dep’t Rep. 69, Decision No. 15,101 (2004). The Commissioner held for the district where on six occasions over a three month period, during early morning hours before school neither the parent nor the child was observed leaving in‐district residence and yet the child was in school on time on those days.
Appeal of Santiago, 42 Educ. Dep’t Rep. 101, Decision No. 14,787 (2002). Surveillance of out‐of‐district address on five “plus a number of occasions” along with other indicia deemed sufficient to deny entry to district.
Appeal of G.P., 44 Educ. Dep’t Rep. 52, Decision No. 15,096 (2004). The Commissioner held for the parents where there were nineteen days of surveillance between March 11 and April 20; the investigator arrived at home between 5:15 a.m. and 6:30 a.m. but never remained at the residence long enough to see whether anyone might leave for work or school. The Commissioner found that the surveillance was done too early as the family was likely still sleeping.
Appeal of Nelson, 44 Educ. Dep’t Rep. 20, Decision No. 15,082 (2004). The Commissioner held for the district where there was surveillance both of in‐district and out‐of‐district locations over two four‐day periods during one month. On seven mornings the investigator observed the child being driven to school from the mother’s out‐of‐district home or the bus stop. On eight evenings, the investigator observed the child being driven to his mother’s out‐of‐district home after church activities.
Two surveillance's were insufficient. Appeal of Mendez, 44 Educ. Dep’t Rep. 6.
The Commissioner held for the district where on thirteen occasions in October and November an out‐of‐district parent was seen driving the child to school. Appeal of J.M., 43 Educ. Dep’t Rep. 125, Decision No. 14,942 (2003).
Appeal of Duncan, 43 Educ. Dep’t Rep. 121, Decision No. 14,941 (2003). The Commissioner found for the district where there was compelling evidence that the Petitioner and his son did not reside in the school district. On the approximately two dozen occasions over the course of four months where surveillance was conducted at the out‐of‐district address, Petitioner’s son was consistently observed leaving the home in the morning, usually with the Petitioner. Further, the investigator testified at the hearing that although he conducted surveillance on a number of occasions at the in‐District address, he never observed the child at that location.
Quality of Surveillance:

Appeal of Craig, 44 Educ. Dep’t Rep. 8, Decision No. 15,078 (2004). Computer searches conducted by private investigators hired by the district provided an abundance of conflicting information regarding petitioner’s residence, and failed to confirm where petitioner resided. The Commissioner also explained that the investigator’s observations were unconvincing because there was no indication that the investigator positively identified the females observed as the petitioner or her daughter on the two observation dates. This was important because the petitioner explained that she loaned her vehicle (which is registered to her husband,) to her husband’s niece who resides at the out‐of‐district residence with the husband. Further the district did not provide information on the number and length of the evening observations purportedly made by the investigator, so it was impossible to evaluate the significance, if any, of his failure to observe the vehicle at the in‐ district residence.

Surveillance Report:

Appeal of J.M., 42 Educ. Dep’t Rep. 80, Decision No. 14,783 (2002):
The surveillance report must identify the people observed, i.e. it is insufficient to merely state “adult female” or “child”.
Formal surveillance report must state, for example, that the child was transported by the parent from a point outside of the district and dropped off at school. Stating “in the direction of” and “towards” are not acceptable.
Surveillance report must also indicate that “based on his investigation he has concluded that parent and child live outside the district.”
Appeal of Monteiro, 35 Educ. Dep’t Rep. 346, Decision No. 13,565 (1996). Surveillance report should report whether child attended school on each day of surveillance.
This discussion is not entirely inclusive, for further information please refer to the following reference:

Thomas Paine Associates will conduct all Student Residency Investigations in accordance with the guidelines promulgated by The New York State School Boards Association and the New York State Association of School Attorneys. (Granelli, L.J. Esq., Volz, T.M. Esq, 2015) Student Enrollment and Residency Determinations, Admit First, Then Ask.
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Professional Surveillance Service



Overt Surveillance

Overt surveillance is conducted in the open. The purpose of open surveillance is to let the target know that he or she is being followed. Open surveillance is a powerful tool that can be utilized in many circumstances. Don’t hesitate to discuss your situation with a licensed investigator to learn more.



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Infidelity, Alimony Reduction, Child Custody



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Alimony Reduction – Alimony reduction is a common reason to hire a Private Investigator. Proof of cohabitation is an effective means by which one can reduce the amount of child support that they have to pay. It is important to note that in accordance with New York State Law, proof of cohabitation is more than basic evidence of a romantic relationship between a boyfriend and girlfriend. Cohabitation only occurs when the recipient spouse habitually lives with their partner and the two act as husband and wife. This is difficult to prove and will almost always require an attorney and a private investigator working cooperatively



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