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Decision No. 13,550

Appeal of JOSEPH F. REILLY, on behalf of MICHAEL LEMANSKI, from action of the Board of Education of the East Islip Union Free School District regarding residency.

Decision No. 13,550

(February 5, 1996)

Blake & Eaderesto, P.C., attorneys for petitioner, Patricia M. Blake, Esq., of counsel

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Islip Union Free School District ("respondent") that his nephew, Michael Lemanski, is not a resident of the district. The appeal must be dismissed.

Petitioner is a resident of respondent's district. Michael's parents, Elizabeth and Stephen Lemanski, reside in Water Mill, New York, outside of respondent's district. In or about May 1995, Michael's parents asked respondent for transportation to the LaSalle Center for Michael since he had received a scholarship to that school. The LaSalle Center is located within respondent's district. Respondent denied the request. By letter dated July 11, 1995, the Lemanski's asked the superintendent of schools to review the decision, explaining that Michael's uncle was a resident of the district and that Michael would live with him while attending the LaSalle Center. By letter dated July 17, 1995, the superintendent denied the transportation request on the basis that the Lemanski's did not reside within the district. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on August 22, 1995.

Petitioner alleges that respondent's determination was arbitrary and capricious and seeks a determination that Michael is a resident of the district. Respondent contends that its determination that Michael is not a resident of the district is proper.

Petitioner maintains that his nephew is entitled to transportation services because Michael is living with him in the district. 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 and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 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 Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). 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 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 Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279; Appeal of Garretson, supra). 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 Ritter, 31 Ed Dept Rep 24).

The weight of the evidence supports respondent's determination that Michael is not a resident of the district. The petition clearly states that Michael has moved in with his uncle to take advantage of a scholarship to the LaSalle Center. While petitioner submits a medical power of attorney and attempts to characterize the arrangement as a "poor man's" way of establishing guardianship, the record suggests otherwise. This arrangement is clearly temporary to allow Michael to attend the LaSalle Center. There is no evidence in the record to suggest that there is any other reason for Michael to move in with petitioner other than to take advantage of the scholarship to the nonpublic school. While this is a great opportunity for Michael, there is nothing in this record which requires the school district to provide him with transportation services. Accordingly, respondent's determination is reasonable and will not be set aside.