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Decision No. 13,671

Appeal of MALIK A. KAREEM, on behalf of his son, JABEER A. KAREEM, from action of the Board of Education of the Half Hollow Hills Central School District regarding residency.

Decision No. 13,671

(August 29, 1996)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich &

Scricca, attorneys for respondent, Jonathan Heidelberger,

Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the Half Hollow Hills Central School District ("respondent") that his son, Jabeer, is not a resident of the district. The appeal must be dismissed.

Petitioner resides at 134 North 20th Street in the Wyandanch Central School District. Petitioner's eldest son, Jalane, resides with his wife in respondent's school district at 45 Brown Boulevard.

On September 8, 1995, petitioner attempted to register his son Jabeer, who is Jalane's younger brother, in respondent's school district by completing a registration form indicating that Jabeer lived at 45 Brown Boulevard. In response to the district's request for additional information on the issue of residency, petitioner completed a transfer of custody affidavit stating that Jabeer resided with his older brother Jalane at the Brown Boulevard address. The affidavit indicated that Jabeer was living with Jalane due to family financial difficulties, that this arrangement was "indefinite", that petitioner continued to be responsible for Jabeer's clothing and medical expenses, and that Jalane was responsible for providing Jabeer with "room and board". Jalane also completed a non-parent application for Jabeer's admission which contained the same information as that on petitioner's affidavit. Petitioner also submitted an affidavit by Jalane's landlady indicating that Jalane leased the property at 45 Brown Boulevard. Based on that information, respondent's administrator for pupil personnel services notified petitioner by letter dated September 14, 1995 that she had determined that Jabeer was not a resident in respondent's school district. The letter further indicated that the determination was based on insufficient documentation establishing Jabeer's residence in the district and informed petitioner of his right to appeal the decision pursuant to Education Law '310. This appeal ensued.

Petitioner challenges respondent's determination that Jabeer does not reside with Jalane in its school district, asserting that he has transferred custody and control of Jabeer to Jalane. Respondent contends that petitioner has not transferred total custody and control of Jabeer to Jalane and that, therefore, Jabeer's residence continues to be with petitioner in the Wyandanch Central School District.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Mirza, 36 Ed Dept Rep ___, Decision No. 13646, dated August 13, 1996; Appeal of Allen, 35 id. 112; Appeal of Warburton, 35 id. 74). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Mirza, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). 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 West, 36 Ed Dept Rep ___, Decision No. 13662, dated August 26, 1996; Appeal of Garretson, 31 id. 542).

The record before me contains no evidence rebutting the presumption that Jabeer's residence is that of his parents in the Wyandanch School District. Although the petitioner claims that he has transferred total custody and control of Jabeer to Jalane, the record belies that assertion. The affidavit purporting to transfer custody indicates that petitioner continues to be responsible for Jabeer's clothing and medical expenses and that such transfer is "indefinite" rather than permanent. Moreover, the record indicates that it was petitioner, not Jalane, who attempted to register Jabeer in respondent's district and filled out the initial registration form. I also note that this appeal was not initiated by Jalane on behalf of Jabeer, but rather by Jabeer's father. In addition, although the petition contains conclusory statements that petitioner is experiencing financial difficulties and can no longer provide for Jabeer, petitioner did not provide respondent with documentation supporting that claim nor has any been submitted in this appeal. In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which he seeks relief (Appeal of Quinto, 36 Ed Dept Rep ___, Decision No. 13656, dated August 26, 1996; Appeal of Nash, 35 id. 203) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Quinto, supra; Appeal of Nash, supra). On the record before me, petitioner has failed to establish that respondent's determination was unreasonable based on the record before it. Accordingly, respondent's determination will not be set aside (Appeal of Garbowski, 36 Ed Dept Rep ___, Decision No. 13653, dated August 14, 1996; Appeal of Allen, 35 id. 112).

THE APPEAL IS DISMISSED.

END OF FILE