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Decision No. 13,468

Appeal of AUBREY LOVE, on behalf of his daughter, ALETA, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 13,468

(August 17, 1995)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Neil Block, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's determination that his daughter, Aleta, is not a resident of the Uniondale Union Free School District ("district") and is, therefore, not entitled to attend its schools tuition free. The appeal must be dismissed.

Aleta is five years old. During the 1994-95 school year, Aleta was enrolled in respondent's half-day kindergarten program at the Smith Street Elementary School. Upon her enrollment, petitioner asserted that Aleta lived with her grandmother and petitioner in Uniondale, and not with Aleta's mother on Fulton Avenue in Hempstead.

In January 1995, respondent came to suspect that Aleta might not be a district resident. An investigation by the district's attendance supervisor revealed that Aleta was not using the district's bus transportation. The attendance supervisor also discovered that the telephone company listed petitioner's address as Fulton Avenue in Hempstead. On or about March 27, 1995, respondent wrote to petitioner, informing him that Aleta would not be allowed to attend school in the district tuition free, effective April 3, 1995, unless petitioner submitted evidence of residence.

On April 3, 1995, the district's attendance officer met with petitioner who continued to assert that he resided in Uniondale. As evidence of his residence, petitioner supplied respondent with his own custodial affidavit, stating that Aleta lives with him at a Uniondale address, but that she visits her mother on weekends and holidays at the Fulton Avenue address. Petitioner provided no additional proof. Respondent subsequently obtained Department of Motor Vehicles documents which listed petitioner's residence as Fulton Avenue in Hempstead, the same address as Aleta's mother.

On April 3, 1995, respondent excluded Aleta from school. On or about April 27, 1995, petitioner's employer wrote to respondent stating that their records reflect petitioner's address as Fulton Avenue in Hempstead. Petitioner appealed Aleta's exclusion from school, contending that Aleta has resided within the district since 1992. Respondent contends that petitioner and Aleta are residents of the Hempstead Union Free School District and that Aleta is not entitled to attend the Uniondale 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).

Petitioner makes no attempt to rebut the presumption that his daughter resides with him. Rather, he contends that he and Aleta reside not with Aleta's mother in Hempstead, but with petitioner's mother in respondent's school 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). Moreover, for purposes of Education Law '3202, a person can have only one legal residence (Appeal of Britton, 33 Ed Dept Rep 198; Appeal of Wadas, 21 id. 577). A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Gibson, 31 Ed Dept Rep 284; Appeal of Reifler, 31 id. 235).

The weight of credible evidence indicates that petitioner does not reside in Uniondale. Department of Motor Vehicles documents list petitioner's address as Hempstead. The telephone company lists petitioner's address as Hempstead. Additionally, petitioner's employer indicates that petitioner's address is Hempstead. Thus, all the documentary evidence, except for petitioner's own statement, suggests that he lives in Hempstead. I find no evidence that petitioner has abandoned his residence in Hempstead.

Because I find that petitioner still resides at the Hempstead address, I also find that Aleta resides there and is not a resident of respondent school district. Accordingly, respondent's determination that Aleta is not a resident of the district is reasonable and will not be set aside (Appeal of Bianco, 34 Ed Dept Rep 637; Appeal of Brutcher, supra; Appeal of Ritter, supra; Matter of Delgado, supra).

THE APPEAL IS DISMISSED.

END OF FILE