Decision No. 13,989

(August 17, 1998)

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Yonkers ("respondent") that his sister, Sharon, is not a resident of the district. The appeal must be dismissed.

Sharon had lived with her parents within respondent's district and attended respondent's schools for 16 years, beginning with kindergarten. Her parents moved outside the district in March 1997 and, at that time, she apparently began staying at the home of petitioner, her brother, who resides within respondent's district. Respondent permitted Sharon to complete the 1996-97 school year at its schools, including the 1997 summer session. By letter dated June 19, 1997, respondent informed Sharon's parents that Sharon would no longer be allowed to attend its schools on a tuition-free basis because she was not a district resident. This appeal ensued. On September 5, 1997 the Commissioner denied petitioner's request for interim relief.

Petitioner contends that Sharon's parents are temporarily residing outside the district and will be moving back into the district as soon as they locate suitable housing. Petitioner alleges that Sharon's parents have temporarily surrendered parental control over Sharon, that Sharon sees her parents daily and that they provide financial support for Sharon. Petitioner contends that Sharon's parents want her to complete her 1997-98 school year in respondent's schools. Petitioner requests a determination that Sharon is a resident of respondent's district and, therefore, entitled to attend its schools tuition free.

Respondent contends that the petition should be dismissed because it is untimely, petitioner lacks standing to bring the appeal, Sharon's parents should have been joined as necessary parties and because Sharon is not a resident of its district.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education under "310 of the Education Law must be brought within 30 days of the action complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner initially attempted to commence this appeal by letter dated July 25, 1997, more than 30 days from respondent's June 19, 1997 letter informing Sharon's parents of its residency determination and petitioner has offered no explanation for the delay. Therefore, the appeal is dismissed.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits. 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 Simond, 36 Ed Dept Rep 117; Appeal of Brutcher, 33 id. 56; Appeal of Curtin, 27 id. 446). 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). However, this presumption may be rebutted (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 Simond, supra; Appeal of Brutcher, supra; Appeal of Garretson, 31 Ed Dept Rep 542). Where the parent continues to support the child the presumption is not rebutted and the child's residence remains with the parent. Moreover, 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 Brutcher, supra; Appeal of Ritter, 31 Ed Dept Rep 24; Appeal of Pinto, supra; Appeal of McMullan, supra).

Petitioner admits that Sharon's parents have only transferred custody to petitioner temporarily so Sharon can attend respondent's schools. Petitioner also admits that Sharon's parents continue to provide her with financial support. On this record, I cannot find that respondent acted arbitrarily by determining that Sharon is not a resident of its district.

In light of the foregoing, it is unnecessary for me to address respondent's remaining contentions.

THE APPEAL IS DISMISSED.

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