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Decision No. 14,476

Appeal of JOANNE MELENDEZ SILVESTRO, on behalf of JAIME MELENDEZ, from action of the Board of Education of the Eastchester Union Free School District regarding residency.

Decision No. 14,476

(October 12, 2000)

Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Eastchester Union Free School District ("respondent") that her son, Jamie, is not a district resident. The appeal must be dismissed.

On an "Application for Admission to District Schools" submitted for Jamie in the spring of 2000, petitioner indicated that, for financial reasons, she, Jamie and her two other children reside with her parents at 110 Fisher Avenue, Eastchester, within respondent’s district. She also noted that she and her mother jointly exercise care, custody and control of Jamie, and provide for his support. Petitioner further indicated on the application that she maintains another residence at 3185 Lincoln Drive, Mohegan Lake, outside respondent’s district, and that she spends "a lot of time with my other children’s father in Mohegan Lake to make it easier on the small amount of room we have in the apartment."

After reviewing the information in the admissions application and conducting several conversations with petitioner, respondent’s Director of Pupil Personnel Services and designee for residency determinations, Amy Goodman, determined that Jamie was not a district resident and was, therefor, ineligible to attend the district’s schools. Ms. Goodman notified petitioner of this determination in a letter dated June 6, 2000. That letter further indicated that Jamie would be excluded from attendance in respondent’s schools effective June 23, 2000. This appeal ensued.

In support of her claim that she and Jamie reside in respondent’s district, petitioner submits the following: a notarized letter from her mother, dated June 30, 2000, stating that petitioner and her three children live with her in her home at 110 Fisher Avenue, Eastchester; a notarized letter from the mother of petitioner’s boyfriend, dated June 29, 2000, stating that neither petitioner nor any of petitioner’s children reside with her at her home at 3185 Lincoln Drive, Mohegan Lake; a notarized letter from Jamie’s father, dated June 28, 2000, stating that Jamie lives with petitioner at the home of petitioner’s parents at 110 Fisher Avenue, Eastchester; two separate credit card statements, dated June 23, 2000 and July 11, 2000, respectively, and a collection notice for an unpaid Consolidated Edison bill, dated June 30, 2000 -- all addressed to petitioner at 110 Fisher Avenue, Eastchester.

Respondent relies upon an affidavit submitted by Ms. Goodman in which she explains that her determination that Jamie is not a district resident was based on her review of petitioner’s application seeking Jamie’s admission into respondent’s schools as well as several conversations she conducted with petitioner over a period of several months. Specifically, Ms. Goodman refers to petitioner’s responses to several questions on the application in which petitioner admits that she has not relinquished care, custody and control over Jamie; that she maintains another residence outside respondent’s district; and that she spends a good deal of time at that other residence with her other children and their father. Ms. Goodman further avers that during a telephone conversation in April 2000, petitioner "admitted that although she spends an occasional night in Eastchester, the bulk of her time is spent in Mohegan Lake, New York with her other two children and their father, now her fianc"."

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 Lapidus, 40 Ed Dept Rep ____, Decision No. 14,408; Appeal of Epps, 39 id. ____, Decision No. 14,377; Appeal of Dimbo, 38 id. 233, Decision No. 14,023).

Residence is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside within the district (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016; Appeal of Daniels, 37 id. 557, Decision No. 13,926). Likewise, for purposes of Education Law "3202, a person can have only one legal residence (Appeal of Chan, 39 Ed Dept Rep 200, Decision No. 14,214; Appeal of Ifill, 38 id. 97, Decision No. 13,992; Appeal of Schwartzburt, 37 id. 139, Decision No. 13,825). Additionally, a child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Cortes, 37 id. 114, Decision No. 13,818). However, this presumption may be rebutted (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Brown, 38 id. 159, Decision No. 14,007; Appeal of Murphy, 37 id. 162, Decision No. 13,831). 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 Juarez, supra; Appeal of Gorrasi, 35 Ed Dept Rep 68, Decision No. 13,467; Appeal of Brutcher, 33 id. 56, Decision No. 12,973). 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 Bogetti, supra; Appeal of a Student with a Disability, 37 Ed Dept Rep 173, Decision No. 13,833; Appeal of Aquila, 31 id. 93, Decision No. 12,581).

At the time of respondent’s residency determination, petitioner acknowledged that she maintains a residence outside the district and that she spends a great deal of time there with two of her children and their father. Petitioner further acknowledged that she continues to maintain custody and control over Jamie. I note that all of the evidence submitted with this petition in support of petitioner’s assertion of residency within respondent’s district is dated subsequent to respondent’s residency determination. Under such circumstances, I do not find respondent’s determination, based upon the information submitted by petitioner at the time of that determination, to be arbitrary, capricious or unreasonable. Therefore, respondent’s determination will not be set aside.

While the appeal must be dismissed for the reasons discussed above, I note that petitioner retains the right to reapply to the district for admission on Jamie’s behalf in the event that petitioner has new information regarding Jamie’s residency status since the date of respondent’s prior decision (see, Appeal of Smith, 39 Ed Dept Rep 28, Decision No. 14,163).

THE APPEAL IS DISMISSED.

END OF FILE