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Decision No. 13,469

Appeal of OLIVIA WARBURTON, on behalf of SONYA PACE, from action of the Board of Education of the Cheektowaga Central School District regarding student residency.

Decision No. 13,469

(August 17, 1995)

Quinn, McGarry & Caffrey, P.C., attorneys for respondent, Frank P. McGarry, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's determination that her niece, Sonya Pace, is not a resident of the district. The appeal must be dismissed.

Petitioner resides in the Cheektowaga Central School District ("respondent"). Sonya's father, William E. Pace, resides in Buffalo, New York. Petitioner alleges that since August 1992, Sonya has resided with her for five days a week during the school year and that she has overnight visitations with her father on the weekends. This arrangement is allegedly due to the fact that Sonya's mother passed away in 1986 and that Mr. Pace's job requires him to occasionally be away overnight. Both petitioner and Mr. Pace concede that Mr. Pace provides financial support for Sonya.

In January 1995, while investigating the circumstances of another student whom respondent suspected of being a nonresident illegally attending its high school, respondent discovered that several students, including Sonya, were carpooling from a neighborhood in Buffalo to respondent's high school. A private investigator subsequently hired by respondent observed Sonya for two weeks in February 1995 leaving her father's home each morning, getting into the driver's seat of a car registered to her father, picking up several other students from her father's neighborhood and then driving to respondent's high school. The investigator also saw Sonya follow the same routine in reverse each afternoon during the period in question. The investigator supplied respondent with a detailed report, complete with photographs verifying these events.

On March 2, 1995, respondent's attendance officer informed Sonya's father that she would no longer be permitted to attend its schools and that he had the right to appeal the decision to respondent's superintendent. On March 6, 1995 respondent's superintendent upheld the attendance officer's determination. This appeal ensued. Respondent has agreed to permit Sonya to remain in its schools pending the outcome of this appeal.

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).

Affidavits submitted by petitioner and Sonya's father both admit that Sonya only stays with petitioner for five days a week during the school year, returning to her father's house on weekends. There is even further evidence to suggest that Sonya is actually living with her father outside the district and driving to respondent's district just to go to school. Petitioner's assertion that Sonya was only at her father's house during the weeks of the surveillance because her father needed assistance caring for her ill brother is not persuasive, especially where her routine consisted of transporting other students into the district. Moreover, these facts do not support a finding that Mr. Pace has relinquished custody and control over Sonya. Accordingly, respondent's determination that Sonya is not a resident of the district is reasonable and will not be set aside (Appeal of Brutcher, supra; Appeal of Ritter, supra; Matter of Delgado, supra).