Decision No. 13,466
Appeal of NAVEEN ANAND, on behalf of his son, HERSH, from action of the Board of Education of the Carle Place Union Free School District regarding residency.
Decision No. 13,466
(August 17, 1995)
Kraemer & Mulligan, Esqs., attorneys for respondent, Robert F. Mulligan, Esq., of counsel
Petitioner appeals respondent's determination that his son, Hersh, is not a resident of the Carle Place Union Free School District and is, therefore, not entitled to continue to attend its schools tuition free. The appeal must be dismissed.
During the 1994-95 school year, Hersh attended the Cherry Lane School in the Carle Place Union Free School District. On September 12, 1994, respondent's superintendent informed petitioner that his son would not be allowed to attend school in the district tuition free, effective September 23, 1994, unless petitioner submitted evidence of residence. On September 16, 1994, petitioner met with the district's Director of Pupil Personnel Services to discuss the district's preliminary determination that Hersh was not entitled to attend its schools tuition free. At that meeting, petitioner asserted that he, his wife and Hersh reside in Massapequa, outside the Carle Place School District. Petitioner further stated that due to extreme personal and familial circumstances, Hersh spends a lot of time with his mother at her place of work, at a location in the Carle Place school district.
On January 12, 1995, the district sent petitioner a letter stating that because Hersh was not a resident of the district, he would be excluded from attendance, effective January 23, 1995. The letter also stated that petitioner could request a hearing to review this determination. Petitioner submitted a letter to the district on or about January 23, 1995 requesting further review of Hersh's residency. On or about January 27, 1995, respondent determined that Hersh was not a resident and was not entitled to a tuition-free education in respondent's school district. Petitioner requested a stay of that determination from the Commissioner. On March 3, 1995, the Commissioner ordered Hersh's reinstatement, pending the outcome of this appeal.
Petitioner seeks an order allowing Hersh to attend school tuition free in respondent's school district. Respondent contends that petitioner and Hersh are not residents of their district and cannot attend their schools tuition free.
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 Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446; Matter of Buglione, 14 id. 220).
A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted (Appeal of Brutcher, supra; Appeal of McMullan, 29 Ed Dept Rep 310). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Brutcher, supra; Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523). Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Brutcher, supra; Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279). Moreover, where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Brutcher, supra; Appeal of Ritter, 31 Ed Dept Rep 24; Appeal of McMullan, supra).
It is uncontroverted that Hersh lives with his parents. Petitioner concedes that Hersh sleeps in petitioner's home in Massapequa, outside respondent's school district. Accordingly, Hersh's residence must be deemed to be that of his parents (Appeal of Brutcher, supra; Appeal of Gwendolyn B., supra; Appeal of Pinto, supra).
Petitioner does not attempt to rebut this presumption, but instead asserts that he basically resides with his mother in respondent district. This assertion is without merit. Petitioner concedes that Hersh's only connection with respondent's district is his mother's place of employment, which is located within the district. Residence for purposes of Education Law '3202 is established based upon two factors: physical presence as an inhabitant within the district (Vaughn, et al. v. Bd. of Educ., 64 Misc. 2d 60; Appeal of Varghese, 34 Ed Dept Rep 455; Matter of Whiteman, 24 id. 337) and an intent to reside in the district (Appeal of Varghese, supra; Matter of Whiteman, supra; Matter of Manning, 24 Ed Dept Rep 33). Petitioner asserts his wife is a resident in respondent district as evidenced by his wife's bank checks and other legal documents which have her business address. However, employment within the boundaries of a school district does not constitute physical presence as an inhabitant within the district for the purpose of establishing residence. Moreover, petitioner concedes that Hersh and his mother sleep in Massapequa, outside respondent's district. The record is uncontroverted that neither petitioner nor his wife was ever physically present as inhabitants in respondent's district (Vaughn, et al. v. Bd. of Educ., supra; Appeal of Varghese, supra; Matter of Whiteman, supra). Accordingly, petitioner, his wife and therefore, Hersh, are not residents of respondent's district. I thus find respondent's residency determination reasonable and I will not set it aside (Appeal of Bianco, 34 Ed Dept Rep 637; Appeal of Brutcher, supra; Matter of Delgado, supra; Appeal of Ritter, supra).
THE APPEAL IS DISMISSED.
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