Decision No. 13,635

(July 11, 1996)

McAdam & Fallon, P.C., attorneys for petitioner, Gregory McAdam, Esq., of counsel

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's determination that her nephew, Paolo Calvaruso, is not a resident of the Valley Central School District ("district"). The appeal must be dismissed.

Petitioner, Paolo's paternal aunt, resides at 22 Glenwood Drive, Walkill, and is a resident of the district. Paolo's parents, Liborio and Maria Calvaruso, live around the corner from petitioner at 86 River Glen Road, Walkill, an address located outside the district.

Paolo, age sixteen, has attended the district's schools since 1985. Although the record is not clear, it appears that at that time, Paolo's parents lived in the district. In 1991, Paolo's parents, and petitioner and her husband submitted an attendance form to the district stating that Paolo would be living with petitioner and her husband in respondent's district. In that form, Paolo's parents stated that they had given "complete, irrevocable and full parental control and responsibility" of Paolo to petitioner and her husband.

During the 1994-95 school year, the district's attendance officer and other district employees questioned Paolo's residency. As a result, the district's superintendent reviewed Paolo's school records and found a number of documents signed by Paolo's parents after their purported transfer of custody in 1991. By letter dated July 21, 1995, the superintendent notified Paolo's parents that Paolo was not a resident of the district. On July 28, 1995, their attorney sent a letter to the superintendent stating that Paolo lived with petitioner. By letter dated August 11, 1995, the superintendent advised Paolo's parents that if they wanted to challenge her residency determination, they could appeal to the State Education Department.

Petitioner commenced this appeal on August 29, 1995 and requested interim relief permitting Paolo to attend the district's schools pending a determination on the merits. Without prejudice to its position, respondent consented to petitioner's request for interim relief.

Thereafter, on September 22, 1995, the superintendent held a hearing on Paolo's residency, which was attended by petitioner and Paolo's parents. At that hearing, petitioner and Paolo's parents explained that Paolo had moved in with petitioner in mid-1991. They also stated that Paolo lives with petitioner because of tension between Paolo and his parents. They explained that Paolo sometimes stays with his parents or grandparents on weekends and in the summer. Petitioner and Paolo's parents further stated that Paolo's parents are financially responsible for Paolo, paying his food, clothing, medical and health insurance expenses.

Initially, I must address a procedural issue. Respondent contends that the petition is untimely, apparently because petitioner commenced this appeal on August 29, 1995, more than 30 days after the superintendent's July 21, 1995 determination. I note, however, that the superintendent did not hold a hearing on the issue of Paolo's residency until September 22, 1995. Accordingly, I will not dismiss the appeal as untimely.

Moreover, it appears from the sequence of events that respondent failed to comply with the procedures required by 8 NYCRR 100.2(y). Section 100.2(y) of the Regulations of the Commissioner of Education provides, in pertinent part:

Section 100.2(y) further provides that the written notice must state, among other things, "... the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools ..." (8 NYCRR 100.2[y][2]) and "that the determination of the board may be appealed to the Commissioner of Education, in accordance with Education Law section 310, within 30 days of the date of the determination, and that the procedure for taking such an appeal may be obtained from the Office of Counsel, New York State Education Department ..." (8 NYCRR 100.2[y][4]).

In this instance, the record contains no evidence that the superintendent afforded petitioner or Paolo's parents the opportunity to submit information concerning Paolo's right to attend the district's schools prior to the superintendent's July 21, 1995 determination. In addition, it does not appear that the superintendent's letters of July 21, 1995 and August 11, 1995 clearly state the procedures for filing an appeal with the Commissioner as required by 8 NYCRR 100.2(y)(4). Accordingly, I admonish the district to comply henceforth with the procedures established in 8 NYCRR 100.2(y).

Nonetheless, since the matter is now before me and petitioner has had ample opportunity to present evidence in support of her claim, I will address the merits. Education Law '3202(1) provides, in pertinent part:

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).

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). However, this presumption may be rebutted (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 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; Appeal of McMullan, supra).

Upon review of the record, I find that the weight of the evidence supports respondent's determination that Paolo is not a resident of the district. The petition states that one of the reasons Paolo lives with petitioner is because he desires to continue to attend the district's schools. The petition also states that Paolo lives with petitioner because of tension between Paolo and his parents. However, there is nothing in the record to indicate that the level of tension is such that Paolo cannot live with his parents.

Further, various documents in the record indicate that Paolo's parents are involved in Paolo's education and continue to assert parental control over him. Specifically, over the past few years, Paolo's parents have signed permission forms and emergency notification forms. Although petitioner alleges that she also signed numerous forms on Paolo's behalf, that does not change the fact that Paolo's parents have continued to exercise some parental control over Paolo. In addition, the record indicates that Paolo's parents remain financially responsible for Paolo. Specifically, Paolo's parents pay for his food, clothing, health and medical expenses. All of these factors indicate that there has not been a complete and total transfer of custody and control from Paolo's parents to petitioner. Accordingly, respondent's determination will not be set aside.

THE APPEAL IS DISMISSED.

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