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Decision No. 13,009

Appeal of GREGG CASABONA, on behalf of his daughter Jamie Casabona, from action of the Board of Education of the Franklin Square Union Free School District regarding residency.

Decision No. 13,009

(September 17, 1993)

Behrens, Loew & Cullen, Esqs., attorneys for respondent, William M. Cullen, Esq., of counsel

SOBOL, Commissioner.--Petitioner, on behalf of his daughter Jamie, challenges respondent's determination that Jamie is not a resident of the Franklin Square Union Free School District ("the district"). The appeal must be dismissed.

On February 22, 1993, petitioner registered his daughter in the district, and she was enrolled in third grade at the Polk Street Elementary School ("Polk"). Her admission to Polk was based upon affidavits submitted by petitioner asserting that he, his wife and daughter reside at 44 Scherer Blvd., within the district. Petitioner's parents, James and Nives Casabona, also submitted an affidavit, stating that petitioner, his wife and daughter resided with them at their residence at 44 Scherer Blvd.

Upon receiving information in April 1993 indicating that petitioner, his wife and daughter did not live at 44 Scherer Blvd. with petitioner's parents, the district conducted an investigation. The investigation revealed that on April 19, 1993, petitioner's father advised an investigator that although Jamie resided at 44 Scherer Blvd., petitioner resided at 715 North Ascan Street in Elmont, New York, outside the district. Petitioner's father further stated that he did not know where petitioner's wife lived. Jamie was not observed returning to her grandfather's home by 9:15 that evening. On four occasions between May 3, 1993 and May 13, 1993, the investigator observed the grandfather picking up Jamie at the Elmont address and transporting her to a bus stop located within the district. The investigator also discovered that petitioner owns 715 North Ascan Street jointly with his wife, and that New York State Motor Vehicle records list petitioner's address as 715 North Ascan Street, Elmont, New York.

Based upon this investigation, the district advised petitioner in a May 14, 1993 letter, that petitioner's daughter did not reside at 44 Scherer Blvd. On May 21, 1993, petitioner met with Assistant Superintendent Ronald Gossow and reiterated that he and his daughter live with his parents at 44 Scherer Blvd. For the first time, petitioner stated that his wife lived separately from him, at 715 North Ascan Street in Elmont. After speaking to petitioner, Superintendent Gossow determined petitioner resides outside the district.

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.

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 Brutcher, 33 Ed Dept Rep __, Decision #12973, dated August 2, 1993; Appeal of Curtin, 27 Ed Dept Rep 446). To ascertain whether they are obligated to provide education to particular students, districts often investigate allegations that non-residents are attending schools in their district. Contrary to petitioner's assertion, provided a school district has reliable indicators that a student is not a resident, such an investigation is appropriate (Appeal of Blagrove, 32 Ed Dept Rep 629).

A child's residence is presumed to be that of his parents (Appeal of Kind, 32 Ed Dept Rep 584; Appeal of Juracka, 31 id. 282; Matter of Forde, 29 id. 359). In cases where parents have been awarded joint custody by a court, the decision regarding the child's residency lies ultimately with the family (Appeal of Juracka, supra; Appeal of Forde, supra). In this case, however, there is no indication that the child has or has had any legal reason to choose between two residences. With the exception of petitioner's assertion to the assistant superintendent on May 21, 1993 that he and his wife do not live together, the record is devoid of evidence of a legal separation or a custody arrangement that divides Jamie's time between two households. Therefore, the district correctly presumes that Jamie resides with petitioner.

The weight of the evidence supports respondent's determination that petitioner and his daughter are not residents of the district. Petitioner's father asserts that petitioner does not reside with him, but petitioner states that he and his daughter do reside with petitioner's father. This inconsistency, coupled with the fact that petitioner and his wife own the property at 715 North Ascan Street in Elmont and that the State Department of Motor Vehicles lists this as petitioner's address, supports respondent's conclusion that petitioner's residence is 715 North Ascan Street. Because petitioner resides outside respondent district, it is presumed that his daughter resides outside the district with him.

Nor does the record reflect any evidence -- other than petitioner's and his father's assertions -- that Jamie lives with her grandfather. Instead, the investigator's observation of Jamie being transported by her grandfather from 715 North Ascan Street in Elmont to a bus stop within the district further supports the conclusion that petitioner's daughter resides at 715 North Ascan Street in Elmont and is not a resident of the district.