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Decision No. 13,093

Appeal of TERRY EISEN, on behalf of BRETT EISEN, from action of the Board of Education of the Valley Stream Union Free School District regarding residency.

Decision No. 13,093

(January 7, 1994)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Florence Frazer, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's determination that her son is not a resident of the Valley Stream Union Free School District. The appeal must be dismissed.

Petitioner's son, Brett, has attended respondent's schools since kindergarten and is currently in fifth grade. In August, respondent's superintendent learned that petitioner and Brett lived in a neighboring school district. At that time, petitioner acknowledged to the superintendent that she and Brett lived outside respondent district, but contended that her son was entitled to attend Valley Stream schools because she and her former husband shared joint custody of Brett, who spent two nights of the week at his father's home in the Valley Stream district. The superintendent asked petitioner to confirm that information in writing.

In response, petitioner stated by letter that she and Brett's father shared joint custody pursuant to a court order. The letter did not confirm petitioner's previous statement that Brett spent two nights per week with his father. On or about September 1, 1993, the superintendent received a letter from Brett's father in which the father stated that Brett does not reside with him. In response to the father's letter, petitioner stated that she would provide an affidavit by September 9, 1993, refuting the information contained in the father's letter. Relying on the assurance that such affidavit would be provided, the superintendent allowed Brett to begin the school year on September 8, 1993.

On September 8, 1993, respondent received a second letter from Brett's father. In this second letter, Brett's father affirmed that Brett did not live with him and stated that he has a limited number of hours of visitation with Brett, namely five hours on Tuesdays, two hours on Wednesday and Saturday evenings, and Sundays until 5:00 p.m. Contrary to petitioner's promise, she did not submit an affidavit to respondent refuting the father's claim.

On September 13, 1993, the superintendent convened a residency review meeting pursuant to 8 NYCRR 100.2(y). Petitioner and Brett's father attended that hearing, and both argued that Brett lived with his mother outside the district and that the hours of visitation with the father were as described by the father. As a result of the hearing, the superintendent issued a written determination on September 14, 1993 that Brett was not a resident of the district and that he would be excluded from further attendance in respondent's schools effective September 27, 1993.

On the morning of September 27, 1993, petitioner presented a copy of a lease agreement indicating that petitioner had rented an apartment within the district. Based on that lease, the superintendent permitted Brett to remain in school pending further investigation. On October 7, 1993, respondent's attendance officer visited the apartment allegedly rented by petitioner. At that time, the owner of the apartment admitted to the attendance officer that petitioner and her son did not live at that address.

On October 12, 1993, the superintendent scheduled a second residency review meeting. At that meeting, Brett's father stated that petitioner and her son still resided outside the district. The attendance officer reported his conversation with the apartment owner, and an affidavit of the apartment owner was submitted, confirming that petitioner and her son did not reside at the apartment in question. An affidavit from the manager of an apartment complex located outside the district was also presented. In that affidavit, the manager stated that petitioner and her son had resided at that complex since August 1992 and that she had recently renewed her lease through July 1995. Because petitioner did not attend the hearing on October 12th, the superintendent adjourned the hearing and sent petitioner notice to submit any relevant evidence on this matter. When petitioner failed to respond, respondent issued a decision finding that Brett was not a resident of the Valley Stream District. This appeal ensued.

Upon review of the record, I find that petitioner has failed to establish that her son has a right to attend school in respondent's school district on a tuition-free basis.

Education Law '3202(1) provides in 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 the statute is to limit the obligation of school districts to provide tuition-free education to those students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446).

A child's residence is presumed to be that of his parents (Matter of Shelmidine, 22 Ed Dept Rep 206; Matter of Delgado, 24 id. 279). In cases where a child's parents live apart, the child can have only one legal residence or domicile (People ex.rel. The Brooklyn Children's Aid Society v. Hendrickson, et al., 54 Misc. 337, aff'd 125 AD 256, aff'd 196 NY 551; Matter of Manning, 24 Ed Dept Rep 33). Although petitioner claims that she and Brett's father have joint custody of Brett, the record reflects that Brett actually lives with his mother and spends only a limited amount of time in the district at his father's home. This is supported by the statements of Brett's father and the investigation of the attendance officer. Moreover, the copy of an order of visitation submitted by petitioner notes that although she and her former husband share joint custody, Brett's primary residence is with petitioner and that Brett's father merely has limited visitation, as described by the father. The record also demonstrates that petitioner lives outside the Valley Stream district. Since Brett resides with her outside of respondent district, I find that he is not entitled to attend respondent's schools on a tuition-free basis.

I have reviewed petitioner's other contentions and find them without merit.