Decision No. 13,807

(August 6, 1997)

Shaw & Perelson, LLP, attorneys for respondent Northeast, Lisa S. Rusk, Esq. of counsel

Plunkett & Jaffe, P.C., attorneys for respondent Dover, Phyllis S. Jaffe, Esq., of counsel

CATE, Acting Commissioner.--Petitioners appeal the determination of the Northeast Central School District ("respondent Northeast") that the student is not a resident of the district. The appeal must be sustained.

Petitioners are the parent and aunt of a student with a disability who is 16 years of age. During the 1995-96 school year, the student resided with his parents within respondent Northeast's district. During that school year, the student had been placed at the Kildonan School, a private school, by his mother. As a result of an impartial hearing and appeal to the State Review Officer, respondent Northeast was ordered to pay for the student's placement in the Kildonan School for the 1995-96 school year (Decision No. 96-42, dated September 10, 1996).

In August 1996, the student's parent moved to a trailer in respondent Dover's district. The student objected to moving with his parents, since the trailer was considerably smaller than the house in which they had previously lived. The student moved in with his maternal aunt and uncle who reside within respondent Northeast's district. By letter dated January 15, 1997, respondent Northeast notified the student's parents that it had reason to believe that the student was not a resident of the district. Petitioners submitted information to respondent Northeast concerning the student's residency at a meeting of the board on January 27, 1997. In a letter dated January 30, 1997, respondent Northeast concluded that the student was not a resident of the district and had not been a resident since at least September 2, 1996. This appeal ensued. Petitioners' request for interim relief was denied on March 25, 1997, however, the Commissioner granted petitioners' request to join respondent Dover as a party to this proceeding.

Petitioners contend that the student is a resident of respondent Northeast's district. They seek an order nullifying Northeast's determination that the student is not a district resident. In the alternative, petitioners seek a determination of the effective date of the residency change so that it can be determined which district is responsible for the provision of a free appropriate education for the student. Respondent Northeast raises three procedural defenses, including the Commissioner's lack of jurisdiction under 8 NYCRR 279, improper verification of the petition and failure to serve the petition and memorandum of law within five days of service as required under 8 NYCRR 275.9. Respondent Northeast also contends that its residency determination was correct and should not be disturbed. Respondent Dover contends that custody and control of the student has been transferred to his maternal aunt and that the student does not reside in its district.

Before reaching the merits of the appeal, I will address respondent Northeast's procedural objections. First, respondent Northeast contends that although the petition states that the appeal is brought pursuant to Education Law '310 and 8 NYCRR 275 and 279, the Commissioner lacks jurisdiction under Part 279. Respondent Northeast is correct that 8 NYCRR 279 applies exclusively to the State Review Officer. However, the record indicates that the basis of this appeal is a residency determination which is properly before the Commissioner under Education Law '310, 8 NYCRR 275 and 100.2(y). I will, therefore, retain jurisdiction over this appeal on that basis.

Secondly, respondent Northeast contends that the petition was not properly verified in accordance with 8 NYCRR 275.5 which states that: "All pleadings should be verified. The petition shall be verified by the oath of at least one of the petitioners..." The petition sent to my Office of Counsel contains a verification by one of the petitioners. While it is regrettable that respondent's copy did not contain a verification, I will not dismiss the appeal on that basis since the petition submitted to my Office of Counsel includes a verification (Appeal of Moravia Teachers' Association, 36 Ed Dept Rep 413).

Finally, respondent Northeast contends that petitioners failed to file the petition, verification and affidavit of service within five days of the service of the petition. Section 275.9 of the Commissioner's regulations requires that the original petition and affidavit of service be transmitted to Office of Counsel within five days after service. In this case, the petition and memorandum of law were served on respondent Northeast on February 26, 1997 and received by my Office of Counsel on March 5, 1997. Since the regulation states that the petition must be transmitted to Office of Counsel within five days, it seems clear that such transmission had to have occurred by March 3, 1997, within the five day time period, since the petition was received by regular mail on March 5, 1997. Therefore, I conclude that petitioners complied with the regulation and decline to dismiss the appeal.

I will now turn to the merits of petitioners' appeal. Education Law '3202(1) provides, in pertinent part:

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 Curtin, 27 Ed Dept Rep 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 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 Garretson, 31 Ed Dept Rep 542; Matter of Van-Curren and Knop, 18 id. 523). In making a determination of residency for a child not living with a custodial parent, a board of education must consider several factors including the extent of time the child actually lives in the district (Vaughn, et al. v. Bd. of Ed., 64 Misc.2d 60, 314 NYS2d 266).

Although a separate residence is not established when a student is living with someone other than a parent solely to take advantage of the schools of the district (Appeal of Ritter, 31 Ed Dept 24), a student may establish a residence apart from his parents for other bona fide reasons (e.g., family conflict, see, Appeal of Menci, 35 Ed Dept Rep 61; Matter of Staulcup, et al., 20 id. 11). Therefore, where there are overriding reasons for establishing one's residence apart from one's parents, aside from taking advantage of the educational programs of the district, and all the indicia of residency have been met, the fact that the choice of residence incidentally affords the student the opportunity to attend a certain school is not determinative (Matter of Moncrieffe, 121 Misc.2d 395).

In this case, the student physically resides with his aunt in respondent Northeast's district. The student has stated that he refuses to live with his parents because the trailer where his parents live is too small, his mother is sick and has to care for his two younger sisters. Petitioners indicate that this was the student's choice. The student's aunt states that she and her husband provide shelter, food and emotional support to the student. Respondent Dover's representative visited the address within the district and found that two adults and two girls live at that location. Petitioner's husband told that representative that the student has refused to live with them. However, respondent Northeast indicates that the student's mother continues to exercise responsibility over the student inconsistent with a transfer of custody and control. They cite petitioner's statements that she is involved with her son's program at Kildonan School, that she never informed respondent Northeast of the student's move to his aunt's home and that she continues to support the student financially.

Respondent Northeast's argument that the student's mother retains custody and control over him is incorrect. Petitioners, the student, and respondent Dover contend that the student lives in respondent Northeast's district and the record indicates that he refuses to live with his parents. The Family Court Act provides "a police officer may return to his parent...any male under that age of sixteen...who has run away from home without just cause..." [Family Court Act '718(a)]. The student who is sixteen years old, may choose where he wants to live, and his mother may not compel his return (Appeal of Menci, 35 Ed Dept Rep 61; Appeal of Deborah V., 29 id. 176).

The record in this case indicates that the student's move to petitioner's home was prompted by valid reasons unrelated to school attendance. This does not appear to be a case in which the student's residence has been changed from that of his parents merely to take advantage of the educational program of another school district. Rather, there is a valid reason for the student to move in with his aunt and uncle unrelated to respondent Northeast's educational program. In fact, the record indicates that the student was unilaterally placed in a private school and that the State Review Officer ordered reimbursement for that placement for the 1995-96 school year. Therefore, the student has not sought to attend the schools of either respondent. Under these circumstances, I find that the student's actual and only residence is with his aunt within respondent Northeast's district (Appeal of Menci, supra; Matter of Staulcup, supra; Matter of Morello, 9 Ed Dept Rep 130).

In light of the foregoing disposition, I will not address the parties' remaining claims.

THE APPEAL IS SUSTAINED.

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

END OF FILE