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Decision No. 13,467

Appeal of MARIA ROSARIA GORRASI, on behalf of her son, MICHAEL POZZA, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding student residency.

Decision No. 13,467

(August 17, 1995)


Guercio & Guercio, Esqs., attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner challenges respondent's determination that her son, Michael, is not a resident of the district. The appeal must be dismissed.

Petitioner is a former resident of the Plainview-Old Bethpage Central School District ("respondent") who currently resides out of state. At the time of this appeal, Michael resided with his grandmother within the district. On November 22, 1994, petitioner received a letter from respondent asking her to complete a notarized affidavit attesting to her son's residency. In a letter dated January 19, 1995, respondent notified petitioner that a hearing would be held on January 31, 1995 pursuant to '100.2(y) of the Commissioner's regulations to determine Michael's residency.

By letter dated January 31, 1995, respondent notified petitioner that it had determined that her son was not a resident of the district. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on March 1, 1995. It appears that Michael remained in respondent's school pursuant to that order until May 1995.

Petitioner seeks a determination that her son is a resident of the district and theorizes that since he is a special education student, respondent has a financial incentive to exclude him from school. Respondent counters that petitioner's son is not a resident of the district, and that the documents submitted by petitioner indicate that no permanent transfer of custody and control of Michael to his grandmother has occurred that would render him a resident of the district and allow Michael to remain in its schools.

Before reaching the merits, I will address a procedural issue raised by respondent. Respondent asserts that Michael has transferred from the district and no longer lives with his grandmother. As proof, respondent submits a student status change form signed by Michael's grandmother. Petitioner does not appear to dispute the transfer, although she declined to withdraw the petition. It is well settled that the Commissioner of Education will only decide matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Lanoir, 34 Ed Dept Rep 562; Application of a Child with A Handicapping Condition, 32 id. 9; Appeal of Impellizzeri, et al., 32 id. 26). Since Michael has transferred out of state, the issue of his residency is moot. Therefore, the appeal must be dismissed.

The appeal should also be dismissed on the merits. 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 (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 (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 support the child, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Brutcher, supra; Appeal of Ritter, 31 Ed Dept Rep 24; Matter of Delgado, 24 id. 279).

In this case, petitioner has not rebutted the presumption that Michael resides with her. First, no permanent transfer of custody and control has occurred. Although petitioner asserts that her mother is financially supporting Michael, it appears that this is not a permanent arrangement. An affidavit petitioner submitted to respondent indicates that the living arrangement is temporary until September 30, 1996. Furthermore, the record indicates that petitioner is involved in her son's education and continues to assert parental control over him. Nor do other facts compel a finding that Michael is a resident of the district. Although petitioner states in her petition that her son is extremely attached to his grandmother, that he is a special education student in need of stability in his educational program, and that her divorce decree does not permit her to relocate Michael without her former husband's permission, these facts do not affect Michael's residency.

While I am sympathetic to petitioner's personal circumstances, there is simply no legal basis to grant petitioner's request. It is undisputed that petitioner relocated out of state and her residence is no longer in respondent's district. Accordingly, respondent's determination that Michael is not a resident of the district is reasonable and will not be set aside (Appeal of Brutcher, supra; Matter of Delgado, supra; Appeal of Ritter, supra).