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Decision No. 13,570

Appeal of DANIEL LEBRON, JR., on behalf of ELIUD LEBRON, from action of the Board of Education of the Liverpool Central School District regarding residency.

Decision No. 13,570

(March 13, 1996)

O'Hara & O'Connell, P.C., attorneys for respondent, Dennis O'Hara, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Liverpool Central School District ("respondent") to exclude his brother from district schools on the basis of residency. The appeal must be sustained.

Eliud Lebron attended a private school in Maine from the time he was 14 until he was discharged in September 1995. Then age 17, Eliud went to stay with his brother in respondent's school district, to which Eliud made a request for admission on October 24, 1995. By letter dated October 26, 1995, respondent notified Eliud's mother that Eliud would not be allowed to attend district schools because (i) she was not a district resident, (ii) she had maintained primary custody and control of Eliud, and (iii) where the sole reason for living with others is to take advantage of the school district, the child's residence is not established. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on December 21, 1995.

Petitioner, a resident of the Liverpool Central School District, argues that his brother, Eliud, has chosen to live with him because he wants to be near family and because he intends eventually to attend LeMoyne College. Petitioner contends that he financially supports Eliud, that he exercises control over his brother's activities and behavior, and that Eliud's mother has surrendered parental control over Eliud to him. Petitioner acknowledges that Eliud speaks to his mother, who lives in New York City, twice a week and visits her on vacations. Petitioner and his brother have no contact with their father. Petitioner asserts that he is his brother's legal guardian, but provides no supporting documentation.

Respondent contends that petitioner's claim is untimely. It further contends that petitioner has failed meet his burden of proof in rebutting the presumption that a child is a resident of the school district in which his or her natural parent resides. Respondent argues that its investigation into Eliud's residency status established that he would return to New York City to live with his mother during the summer months and school vacations, leading it to conclude that the sole purpose of Eliud moving in with his brother was to take advantage of the services provided by respondent's school district. Respondent finally asserts that it has satisfied all legal and procedural requirements of '100.2(y) of the Commissioner's regulations.

As a threshold matter, the Commissioner's regulations require that an appeal be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). The letter notifying Eliud's mother of respondent's residency determination was dated October 25, 1995, and petitioner served respondent on November 30, 1995, after unsuccessful attempts on November 24 and 27. Where, as here, petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to the respondent (Appeal of Moessinger, 34 Ed Dept Rep 246). Because the delay in this matter is minimal and there is no evidence of prejudice to respondent, I decline to dismiss the appeal as untimely (Appeal of Bussfeld, 34 Ed Dept Rep 383).

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 only to district residents (Appeal of Allen, 35 Ed Dept Rep 112, Appeal of Warburton, 35 id. 74). Where a district follows the proper procedures set forth in '100.2(y) of the Commissioner's regulations, a district's determination as to the residence of a child will not be set aside unless it is shown to be arbitrary or unreasonable (Appeal of Allen, supra; Matter of Wadas, 21 Ed Dept Rep 577; 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 Reilly, 35 Ed Dept Rep ___, Decision No. 13,550 dated February 5, 1996; Appeal of Allen, supra). That presumption can be rebutted where it is shown that the parents have relinquished total custody and control, in which case the child's residence becomes that of the person assuming parental control (Appeal of Gorrasi, 35 Ed Dept Rep 68; Appeal of Brutcher, 33 id. 56). Formal guardianship proceedings are not necessary to establish custody and control for purposes of residency (Appeal of Britton, 33 Ed Dept Rep 120; Appeal of Pernell, 30 id. 380). However, with or without letters of guardianship, when 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 Pinto, 30 Ed Dept Rep 374; Appeal of McMullan, 29 id. 310).

In this case, respondent relies on the presumption that Eliud resides with his mother in New York City and contends that petitioner has not rebutted that presumption. I disagree. Petitioner completed respondent's forms -- a parent affidavit signed by Eliud's mother and a custodial affidavit signed by petitioner. Both documents confirm that petitioner has sole custody and is Eliud's sole source of support. Respondent focuses on Eliud's mother's response to the inquiry, "If you have relinquished custody and control to another person, please explain," to which she answered, "He wants to be with his eldest brother. Doesn't want to be in New York City." Respondent interprets this statement to mean that Eliud does not want to attend New York City schools and is therefore living with petitioner for the sole purpose of taking advantage of respondent's school district.

Respondent offers no basis for its conclusion, and I find it arbitrary and unreasonable. The advantages and disadvantages of living either in New York City or in central upstate New York are varied and reach far beyond the characteristics of the respective school systems. Also, the mere fact that a child continues to maintain a relationship with a parent who has otherwise relinquished custody and control of the child to another is not determinative in resolving the question of the child's residence (Appeal of McMullan, supra). Therefore, based on the record before me, I conclude that the presumption that Eliud resides with his mother outside of respondent's school district has been rebutted. Accordingly, respondent's determination will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Eliud to attend school in the Liverpool Central School District without the payment of tuition.

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