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Decision No. 13,436

Appeal of RONI BIANCO, on behalf of her son, SCOTT, from action of the Board of Education of the Valley Stream Central High School District regarding residency.

Decision No. 13,436

(June 27, 1995)

Sidney Romash, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her son, Scott, is not a resident of the Valley Stream Central High School District and is, therefore, not entitled to continue to attend its school tuition free. The appeal must be dismissed.

Scott has attended respondent's South High School since September 14, 1994. Petitioner and her son reside at 148-15 Huxley Street in the City of New York. Scott's uncle owns a home in respondent school district.

Petitioner seeks to enroll Scott in respondent's schools tuition free because she intends to sell her home in Queens and move to Nassau County. She also asserts that Scott's uncle could be made his legal guardian to enable him to attend school in respondent district. Although respondent is allowing Scott to attend its school pending the outcome of this appeal, it contends he is a non-resident asserting residency merely to attend its schools. Therefore, respondent contends Scott is not entitled to attend its schools tuition free.

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 Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446; Matter of Buglione, 14 id. 220).

A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 77 NY2d 552; Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted (Catlin v. Sobol, supra; Appeal of Brutcher, supra; 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 Brutcher, supra; 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 (Appeal of Brutcher, supra; Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279). 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 Brutcher, supra; Appeal of Ritter, 31 Ed Dept Rep 24; Appeal of McMullan, supra).

It is uncontroverted that petitioner and Scott are not residents of respondent school district. Petitioner states that she wishes to have Scott live with his uncle to enable Scott to attend school in respondent district. Because petitioner is not a resident and because her sole basis for seeking to have Scott live in the district is to take advantage of the school, there is no basis upon which Scott can be considered a resident. Accordingly, respondent's determination is reasonable and will not be set aside (Appeal of Brutcher, supra; Appeal of Delgado, supra; Appeal of Ritter, supra). However, residency status can change and in the event that petitioner sells her house and does move into respondent school district, Scott's status should be reevaluated by respondent.