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Decision No. 12,787

Appeal of GWENDOLYN B. from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 12,787

(August 26, 1992)

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that her son is not a resident of the Sewanhaka Central High School District (the district). The appeal must be dismissed.

Petitioner's son has attended the district's Floral Park Memorial High School (Floral Park) since 1988. He is a special education student scheduled to graduate in June 1993. Petitioner states that she and her family resided in the district between September 1988 and April 1991. During that period, the family rented a house from petitioner's cousin, while the cousin was in Florida. Before moving into the cousin's house, petitioner and her family lived in a house they owned in Hempstead, outside the district. Apparently, petitioner and her family returned to the Hempstead house in April 1991, when the cousin returned from Florida. Petitioner admits that, although she did not surrender parental custody and control, her son remained at the cousin's house to continue school at Floral Park.

In September 1991, investigators from the district observed petitioner's son arriving at school in a vehicle driven by his father, John B., which was registered at the Hempstead address. On subsequent occasions, the investigators observed the student at the family's Hempstead home. They also learned that petitioner's driver license and vehicle registration carried the Hempstead address. Based on this information, the district determined that petitioner's son was no longer a resident of the district and, consequently, no longer entitled to attend the district's schools. On February 12, 1992, at petitioner's request, a hearing was held pursuant to 8 NYCRR 100.2(y) to determine whether petitioner's son was a resident of the district. On February 13, 1992, petitioner's appeal was denied. The district did not provide petitioner with the hearing officer's written decision, however, until March 16, 1992.

Petitioner commenced this appeal on March 30, 1992. She requested an interim order directing respondent to maintain her son in its schools pending a decision on the merits. Interim relief was granted on April 17, 1992.

Education Law '3202(1) provides:

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 (Education Law '3202[1]).

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education only to students whose parents or legal guardians reside within the district (Appeal of Anthony S., 32 Ed Dept Rep , Decision No. 12769, dated August 5, 1992; Appeal of Wilkerson, 32 Ed Dept Rep , Decision No. 12757, dated July 23, 1992). A child's residence is presumed to be that of his parents or legal guardians (Appeal of Claudette C., 32 Ed Dept Rep , Decision No. 12781, dated August 19, 1992; Appeal of Pinto, 30 Ed Dept Rep 374). Since the burden of proof regarding residence lies with the party alleging a change, the issue before me is whether respondent has satisfied its burden of establishing that petitioner no longer resides in the district (Appeal of Bonfante-Ceruti, 31 Ed Dept Rep 38, 40; Appeal of Gibson, 31 Ed Dept Rep 284, 287).

The weight of the evidence supports respondent's contention that petitioner and her family are no longer residents of the district. Petitioner admits that she lives in her Hempstead home, outside the district. She further admits that she has not surrendered parental custody or control over her son, and that her son resides with her cousin for the sole purpose of attending school in the district. Although residence for purposes of '3202 may be established in part upon the student's continuing presence in the district and his intent to remain, a student has not established residence when he or she is residing with someone other than a parent solely to take advantage of the schools in the district (Appeal of Ritter, 31 Ed Dept Rep 24, 25). I must conclude, therefore, that respondent has satisfied its burden of proof in this appeal.

I direct respondent to work with the Hempstead Union Free School District to provide petitioner's son with a smooth transition into that district.