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Decision No. 12,731

Appeal of RANDAL POPP from action of the Board of Education of the Garden City Union Free School District regarding residency.

Decision No. 12,731

(June 26, 1992)

Cullen and Dykman, Esqs., attorneys for respondent, Thomas B. Wassel, Esq., of counsel

SOBOL, Commissioner.—Petitioner appeals from respondent's determination that he is not a resident of the Garden City Union Free School District and is, therefore, not entitled to continue to attend its schools tuition-free. I previously issued an interim order requiring respondent to allow petitioner to remain in school pending my final determination on the merits. I now dismiss the appeal.

Petitioner, who is eighteen years old, alleges that in February 1991 he moved from his parents' home in a neighboring school district to the home of his adult cousin and grandparents in the Garden City Union Free School District. Petitioner claims that he left his parents' home because he could not get along with his father. Petitioner continued to attend the private school he was attending when he lived with his parents until the end of the 1990-91 school year, when it closed. Petitioner then registered for school in respondent's district and began attending its high school in September 1991. Petitioner alleges that sometime during November 1991, he moved from his cousin's home to the home of a friend. His friend's family allegedly provides petitioner with food, shelter and clothing. Although petitioner acknowledges that his mother provides him with ten dollars a week and that he sees his family some weekends, he maintains that he is emancipated, and that he owns his own car and pays for his own car insurance.

Respondent contends that petitioner is not a resident of the district and, therefore, is not entitled to attend its schools tuition-free. In support of this contention, respondent relies upon the affidavit of its Director of Pupil Personnel Services ("Director"). The Director alleges that, after receiving a report from an unidentified resident that petitioner was not a resident of the school district, she dispatched an investigator to visit petitioner's cousin's home in Garden City, and petitioner's parents' home in the neighboring district. During neither visit to the Garden City home did the investigator observe petitioner. He did spot petitioner on one morning, leaving petitioner's parents' home and getting into a companion's car.

On October 8, 1991, the Director wrote to petitioner's grandparents in Garden City and informed them that, based upon the private investigator's report, she had determined that petitioner was not a resident of the school district. Subsequent to the letter, the Director had two conversations with certain individuals about petitioner. The first was with petitioner's cousin who indicated that petitioner lived with her and that he had stayed with his parents for a couple of days while she was on vacation. The second conversation was with petitioner's mother, who indicated that petitioner lived with his cousin, but that he was sent to her home from school when he was ill, and that he stayed at her home when his cousin was on vacation. The director also submitted with her affidavit an undated, notarized letter from petitioner's mother, which stated that petitioner resided with his cousin in respondent's district.

By letter dated November 7, 1991, respondent's superintendent sustained the director's decision concerning petitioner's residency. The letter advised that petitioner would be excluded from school as of November 18, 1991. Petitioner, appearing prose, commenced this appeal on November 25, 1991.

Education Law "3202(1) provides that "[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" (seealso, Catlin v. Sobol, 77 NY2d 552, 569 NYS2d 353). A determination by a board of education that a child is not a resident of its school district will not be set aside unless it is arbitrary, capricious or unreasonable (Appeal of Deborah V., 29 Ed Dept Rep 176). Generally, a student's residence is presumed to be that of his or her parents (Matter of Weher et al., 31 Ed Dept Rep 186; Matter of Warren, 25 id. 403; Matter of Staulcup et al., 20 id. 11), however, that presumption is rebuttable (Appeal of Walsh, 26 id. 379). By establishing the status of an emancipated minor, a pupil may rebut the presumption that his or her residence is with one's parents (Appeal of Deborah V., supra; Matter of Takeall, 23 Ed Dept Rep 475).

This decision turns on whether petitioner has established himself as an emancipated minor. I find that he has not. He admits that he receives financial support from his mother and spends time at his mother's house. He was seen by respondent leaving his parents' house on a school morning. On another school morning, although he was at school, he was not seen to leave the house where he allegedly resided. Further, petitioner stayed with his parents when his adult relatives were on vacation because he could not stay in the house alone. Accordingly, I find that petitioner has not rebutted the presumption that he resides with his parents, outside of the Garden City Union Free School District.