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Decision No. 13,663

Appeal of GABY A. ATALLAH, on behalf of TANIA NASR, from action of the Board of Education of the Greece Central School District regarding residency.

Decision No. 13,663

(August 28, 1996)

Wayne A. Vander Byl, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the Greece Central School District ("respondent") that his niece is not a resident of the district. The appeal must be dismissed.

Petitioner is a resident of respondent's district and the uncle of Tania Nasr. Petitioner states that his niece has been living with him at 189 Frear Driver in respondent's district for two years. Petitioner indicates that the student's parents reside in Rochester and that the student lives with him because her father is frequently travelling out of the country on business. Petitioner further indicates that his niece intends to live with him until she graduates from high school.

In September 1995, Tania's mother enrolled her in respondent's school district. As part of the enrollment process, she submitted a residency affidavit stating that Tania resided with petitioner at 189 Frear Drive. The affidavit indicated that Tania chose to live with her aunt and uncle, that Tania's mother was responsible for the student's health and dental expenses, and that petitioner and his wife were responsible for "making sure that [Tania got] to school, cooking, providing shelter, etc."

In the fall of 1995, school officials observed that the student did not regularly arrive at school on the school district bus from the 189 Frear Drive address. School officials also noted that the student's mother, rather than petitioner, conferred with school officials regarding disciplinary matters involving her daughter. Thereafter, respondent engaged the services of a private investigation firm to observe the parents' address in Rochester to determine whether Tania was present at that address. The surveillance report indicated that on eight dates during the period from November 6 to November 29, 1995, Tania was observed leaving the Rochester residence and being driven by her mother to Olympia High School in respondent's school district. Based on that information, respondent's director of student services notified Tania's mother by letter dated December 7, 1995 that he had made a preliminary determination that Tania was not a resident in respondent's school district. The letter further indicated that documentation concerning her daughter's residence could be submitted to the school district no later than December 15, 1995. By letter dated December 15, 1995, the designee notified Tania's mother that, based on the fact that he had received no reply to his prior letter or any other information regarding her daughter's residence, he determined that Tania was not a resident of respondent's school district and therefore was not entitled to attend its schools. This appeal ensued.

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 Mirza, 36 Ed Dept Rep ___, Decision No. 13646, dated August 13, 1996; Appeal of Allen, 35 id. 112; Appeal of Warburton, 35 id. 74). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Mirza, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374).

The record before me contains no evidence rebutting the presumption that Tania's residence is that of her parents. Although the petitioner characterizes himself in the petition as Tania's guardian, he presents no evidence establishing that he is her legal guardian or that custody has been transferred to him. While the petition contains conclusory statements that Tania resides with petitioner in respondent's school district, petitioner submits no documentation to that effect. Indeed, the evidence considered by respondent - the investigator's surveillance report, the residency affidavit stating that Tania's mother was responsible for her medical and dental expenses, the disciplinary conferences involving Tania's mother, petitioner's admission that Tania is living with him until she graduates from high school and assertions that she constantly sees her parents, and the failure of petitioner and the student's parents to provide any proof of residency in response to the designee's December 7, 1995 request - supports respondent's determination that Tania is not a resident of its district. Accordingly, respondent's determination will not be set aside (Appeal of Garbowski, 36 Ed Dept Rep ___, Decision No. 13653, dated August 14, 1996; Appeal of Allen, 35 id. 112).