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Decision No. 13,250

Appeal of ROXANNE MARIE, on behalf of her son, JOHN MARIE, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 13,250

(August 31, 1994)

Dunn & Smith, Esqs., attorneys for petitioner, Robert S. Dunn, Esq., of counsel

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of respondent Board of Education of the Sewanhaka Central High School District that her son, John, is not a resident of the district. The appeal must be dismissed.

John was first registered in the Sewanhaka Central High School District on September 4, 1991. At the time of registration, petitioner alleged that she was renting a home in Elmont within respondent's school district. Questions as to petitioner's residence first arose in the summer of 1993 when respondent's representatives were unable to contact petitioner at the Elmont address after numerous home visits and telephone calls.

Pursuant to 8 NYCRR 100.2(y), a hearing was held on September 13, 1993 to determine John's residency. Petitioner was present at that hearing and alleged that she no longer rented the Elmont address but had made arrangements with the homeowner to reside in the basement. Petitioner testified that her job required long and varied hours and, therefore, respondent was unable to find anyone at home during home visits. Based on petitioner's representations, the hearing officer determined that the actual residence of petitioner and her son needed to be clarified and permitted John to continue to attend Elmont Memorial High School.

Subsequent to the September hearing, respondent conducted surveillance to verify petitioner's actual address and discovered that petitioner used an address in Queens and had registered to vote and voted at that address. Moreover, petitioner maintained an unlisted telephone number there. Petitioner and her son were also seen leaving that address on several occasions. On January 6, 1994, a second residency hearing was conducted. Petitioner was present at that hearing and testified that she lives in various places because of her job schedule. She also testified that her son sometimes stayed at the Elmont address with his godmother, who was seeking to be appointed legal guardian of John. Petitioner presented a copy of an in-take appointment notice from Nassau County Family Court in support of her testimony.

On January 11, 1994, respondent informed petitioner that it had concluded that her son was not a resident of the district and would, therefore, be excluded from its schools effective January 28, 1994. This appeal ensued. On February 9, 1994, I issued an interim order directing respondent to allow petitioner's son to enroll in its schools pending a final decision on the merits. The appeal must now be dismissed.

Petitioner alleges that her son is a resident of respondent's district because he is now living with his godmother, who is a resident of respondent's district. Respondent contends that its residency determination was not arbitrary, capricious or unreasonable.

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 56; Appeal of Curtin, 27 id. 446). To ascertain whether it is obliged to provide education to a particular student, a board of education is sometimes required to investigate allegations that non-residents are attending schools in the district. 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).

Residence is determined based upon an individual's physical presence as an inhabitant within the district combined with the intent to remain (Appeal of Rosen, 33 Ed Dept Rep 443; Appeal of Stokes, 32 id. 93; Appeal of Bonfante-Ceruti, 31 id. 38; Appeal of Reifler, 31 id. 235). The term "residence" for the purposes of the Education Law refers to one's "domicile" (Appeal of Reifler, supra). A "domicile" in turn means living in a locality with the intention to make it a fixed and permanent home. While a person may have more than one residence, he may have only one domicile (Matter of Newcomb, 192 NY 238).

In general, a student's residence is presumed to be that of his or her parent(s) or legal guardian(s) (Catlin v. Sobol, 155 AD2d 24, rev'd on other grnds, 77 NY2d 552; Matter of Shelmidine, 22 Ed Dept Rep 206; Matter of Delgado, 24 id. 279). In this case, it appears from the evidence presented at the residency hearing that petitioner does not reside in the district. Therefore, John cannot be presumed to be a resident of the district by virtue of his mother's residence. Petitioner alleges, however, that her son is a resident of the district because he resides with his godmother.

The presumption that a child resides with his parent can be rebutted by examining the totality of the circumstances (Appeal of Ambris, 31 Ed Dept Rep 41). In particular, the presumption is rebutted when it is has been demonstrated that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Matter of Van-Curran and Knop, 18 Ed Dept Rep 523; Catlin v. Sobol, supra). While it is not necessary to establish parental custody and control through formal legal proceedings, it is necessary to demonstrate that a particular location is a child's permanent residence and that the individual(s) exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Pernell, 30 Ed Dept Rep 380). In this case, the record does not support petitioner's contention that John resides with his godmother in respondent's district. The arrangements by which John lives with his godmother do not appear to be a permanent transfer of custody and control. While the record includes an affidavit from John's godmother which stated that she was seeking to be appointed his legal guardian, there is no evidence that this transfer of custody ever took place. Based on the record before me, respondent's determination that John is not a resident of its district is not arbitrary, capricious or unreasonable.