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Decision No. 13,792

Appeal of JAMES F. KEHOE, on behalf of his son, BENJAMIN KEHOE, from action of the Board of Education of the Holland Patent Central School District regarding residency.

Decision No. 13,792

(July 18, 1997)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

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

Petitioner James F. Kehoe, a resident of the city of Utica, is the father of Benjamin Kehoe, an eighteen year old student who attended school in respondent's district from kindergarten until the fall of 1995. Although the record is unclear, it appears that Benjamin was a district resident and attended school tuition-free during that period. In August 1995, Benjamin's mother, who is divorced from petitioner, moved to North Carolina, with Benjamin and his two siblings. Benjamin enrolled in a North Carolina high school for the fall 1995 semester, but after a period of time obtained permission from his mother to return to New York to continue his education. He then took up residence with petitioner in Utica and attended respondent's school as a nonresident tuition-paying student for the remainder of the 1995-96 school year. School taxes paid by Benjamin's mother on property she owned in respondent's district prior to her move were credited toward tuition and petitioner accepted responsibility for payment of the balance of the tuition.

Benjamin traveled to North Carolina for his summer vacation in 1996 and during that period he made arrangements for the 1996-97 school year to board with residents of respondent's district. He then moved in with them, obtained a job to provide for his expenses, and sought to enroll as a resident student in respondent's district in September 1996. On September 13 and 16, 1996, respondent's Director of Curriculum and Special Pupil Services, Martin Eppner, met with petitioner to determine whether Benjamin would be allowed to attend the district's schools as a resident. In those meetings, petitioner was given the opportunity to submit evidence in support of his position that Benjamin was an emancipated minor and a resident of the district. On September 17, 1996, Mr. Eppner notified petitioner of his determination that Benjamin was not a resident of the district, the reasons for that determination, and informed the petitioner of his right to appeal the decision to the Commissioner of Education pursuant to Education Law '310. Petitioner commenced this appeal on October 18, 1996.

Petitioner contends that Benjamin is an emancipated minor who has established his residence in respondent's district. Petitioner argues that, although Benjamin is covered by his mother's health insurance, his car is insured under his mother's policy, and both parents provide clothing and occasional spending money, Benjamin supports himself. Petitioner further contends that Benjamin made his own decision to live apart from his family and attend respondent's school against the wishes of petitioner and Benjamin's mother. Petitioner also indicates that he and Benjamin have an uneasy relationship and that Benjamin was uncommunicative and avoided petitioner's residence as much as possible when he was residing with petitioner.

Respondent contends that its determination that Benjamin was not an emancipated minor was both rational and reasonable, that there was sufficient evidence to show that Benjamin's parents provided him financial support, and that there is no evidence that petitioner or Benjamin's mother have relinquished custody or control over Benjamin. Respondent also alleges that Benjamin is not a resident of their district because the sole reason Benjamin is living apart from his parents is to take advantage of the district's educational programs.

Education Law '3202(1) provides that "[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 only to district residents (Appeal of Garbowski, 36 Ed Dept Rep 54; Appeal of Allen, 35 id. 112). Generally, a student's residence is presumed to be that of his or her parents or legal guardians (Appeal of Atallah, 36 Ed Dept Rep 78; Appeal of Allen, supra). Where a student lives apart from his or her parent or legal guardian and the parent continues to exercise custody and control of the child and to support the student, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Keenan 36 Ed Dept Rep 6; Appeal of a Student with a Disability, 36 id. 81; Appeal of Aquila, 31 id. 93). Additionally, when the sole reason the student is residing with someone other than the parent is to take advantage of the schools of the district, the student has not established residence (Appeal of West, 36 Ed Dept Rep 76; Appeal of Brutcher, 33 id. 56; Appeal of Ritter, 31 id. 24).

By establishing the status of an emancipated minor, a pupil may rebut the presumption that his or her residence is with one's parents (Appeal of Clary, 33 Ed Dept Rep 72; Appeal of Popp, 31 id. 546). For purposes of establishing residency under Education Law '3202, a student is considered emancipated if he or she is beyond the compulsory school age, is living separate and apart from his or her parents in a manner inconsistent with parental custody and control, is not receiving financial support from his or her parents, and has no intent to return home (Appeal of Clary, supra; Appeal of Werher and Carlson, 31 id. 186).

Applying these factors to the record before me, I find that petitioner has failed to establish Benjamin's emancipation and conclude that the weight of the evidence supports respondent's determination that Benjamin is not a resident of the district. Neither petitioner nor Benjamin's mother, whose affidavit was attached to the petition, claims to have relinquished custody and control over Benjamin. Petitioner and Benjamin's mother provide significant financial support in the form of health insurance, automobile insurance, clothing, and spending money. The only evidence submitted by petitioner is a copy of the North Carolina certificate of title to Benjamin's car, which lists Benjamin as the owner of the car and indicates a North Carolina address. While petitioner and Benjamin may have a difficult relationship, there is no assertion that it is so severe that they cannot live under the same roof. There is no indication that Benjamin intends to remain a resident of respondent's district beyond his graduation. In short, it is apparent from the record that Benjamin is living apart from his parents in order to take advantage of the schools in respondent's district. Therefore, respondent's determination that Benjamin is not a resident of its district was reasonable and will not be set aside.