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Decision No. 12,973

Appeal of KELLIE J. BRUTCHER, on behalf of her son, Michael R. Brutcher, from action of the Board of Education of the North Syracuse Central School District regarding residency.

Decision No. 12,973

(August 2, 1993)

Bond, Schoeneck & King, attorneys for respondent, Donald E. Budmen, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that her son, Michael R. Brutcher, is not a resident of the North Syracuse Central School District and is therefore not entitled to continue to attend its schools tuition free. The appeal must be dismissed.

At the beginning of the 1992-93 school year, petitioner and her family resided in the North Syracuse Central School District. On November 1, 1992, the Brutcher family moved to Liverpool, New York, an area outside respondent's district. Shortly thereafter, Michael's mother and grandmother submitted residency affidavits to the district stating that on November 3, 1992, Michael began living with his grandmother in respondent's district. Pending a review of the affidavits, the district permitted Michael to attend its Roxboro Middle School tuition free and sent Michael's report cards and other school correspondence to his grandmother's address.

In early January 1993, the district received information that Michael was residing with his parents in Liverpool and was being transported to Roxboro Middle School. Roxboro's attendance officer asked Michael where he was living and he told her that he was living at 151 Old Liverpool Road, his parents' address in Liverpool, New York. Based on this information, on January 6, 1993, respondent's executive director for instruction sent a letter to petitioner indicating that Michael no longer resided in the district and therefore was not entitled to attend the district's schools tuition free.

After receiving no response from petitioner, the associate principal of the Roxboro Middle School sent a follow-up letter dated January 25, 1993. Petitioner then contacted respondent's executive director for instruction to discuss the issue of residency. By letter dated February 3, 1993, the executive director for instruction again informed petitioner that her son was no longer a district resident and could not attend the district's schools tuition free. The letter also informed petitioner of her right to appeal the decision. In response, petitioner sent a letter to the district dated February 6, 1993 stating that Michael resided with his grandmother in respondent's district. At that point, the district examined its files and determined that the Brutchers had not relinquished parental custody and control and that Michael's purported change of residence was made for the sole purpose of attending the district's schools. By letter dated February 23, 1993, the executive director for instruction affirmed his prior determination. This appeal ensued.

Petitioner maintains that her son is entitled to attend school in the North Syracuse Central School District because he is staying with his grandmother, who lives within the district. 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 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). 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 Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523). 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 (See, Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279; Appeal of Garretson, supra). Moreover, where 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 Ritter, 31 Ed Dept Rep 24; Appeal of McMullan, supra).

The weight of the evidence supports respondent's determination that Michael is no longer a resident of the district. The specific positive representations made by Michael's mother and grandmother in their residency affidavits belie the conclusion, at the end of their affidavits, that Michael's mother relinquished custody and control over Michael to his grandmother. The affidavits indicate that Michael's parents provide all of Michael's financial support; pay Michael's grandmother to "babysit" him; and are responsible, along with his grandmother, for emergency decisions. The affidavits also show that Michael spends weekends with his parents and lives with his grandmother solely to attend respondent's Roxboro Middle School. In addition, petitioner's February 6, 1993 letter to the district and her petition further indicate that the reason Michael lives with his grandmother is so he can continue attending the Roxboro Middle School. Accordingly, respondent's determination is reasonable and will not be set aside (See, Matter of Delgado, supra; Appeal of Ritter, supra).

Although petitioner expresses an intent to return to the North Syracuse Central School District in September, there is no evidence in the record that petitioner has taken any positive steps to move back to respondent's district. If petitioner subsequently returns to the district, nothing in this decision precludes her from submitting to respondent additional documentation to establish her child's residency.