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Decision No. 13,821

Appeal of EVELYN GALAY, NELSON PEREZ and NORA PEREZ, on behalf of Jose Galay, from action of the Board of Education of the Longwood Central School District, regarding residency.

Decision No. 13,821

(August 19, 1997)

Bronx Legal Services, attorneys for petitioners, Tonya Douglas, Esq., of counsel

Ingerman, Smith, LLP, attorneys for respondent, Mary Anne Sadowsky, Esq., of counsel

CATE, Acting Commissioner.--Petitioners appeal respondent's determination that Jose Galay is not a resident of the Longwood Central School District ("district"). The appeal must be dismissed.

Prior to October 1996, Jose Galay lived with his mother, Evelyn Galay, in the Bronx, and attended A. Philip Randolph Campus High School at City College. At some time in October 1996, Jose moved from his mother's residence to the home of his mother's brother, Nelson Perez, and his wife, Nora Perez, at 23 Koren Lane, Middle Island, New York, which is within the district. In late October, Jose attempted to register at Longwood High School. As part of the registration process, petitioners Evelyn Galay and Nora Perez executed certain affidavits required by respondent. The record contains a "parent affidavit" executed by Evelyn Galay on October 23, and a "custodial affidavit" executed by Nora Perez on the same date. The record also contains another parent affidavit executed by Evelyn Galay on October 26, 1996, on the same basic form as her earlier parent affidavit, but containing information substantially different from that appearing in her October 23 affidavit.

Because of certain factual discrepancies, the district's assistant superintendent held a conference on November 22, 1996, with petitioners Evelyn Galay and Nora Perez, Jose, and another relative of Mrs. Galay. The affidavit of the assistant superintendent states that Mrs. Galay related that her son had fallen in with bad companions at his school, refused to attend his school, and that she was trying to find the right school for Jose to attend.

Based upon the contradictory statements in the affidavits and statements made orally at the conference, the assistant superintendent denied Jose permission to register as a resident student. Among the reasons cited in his letter, he stated that the attempted transfer of custody was not permanent, as reflected in all three affidavits, and that he believed that the attempted transfer was for the purpose of taking advantage of Longwood's educational offerings.

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 Simond, 36 Ed Dept Rep 117; Appeal of Brutcher, 33 id. 56; Appeal of Curtin, 27 id. 446). It is presumed that a child resides with his or her parents or legal guardian (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). The presumption may be rebutted in a proper case (Appeal of McMullan, 29 Ed Dept Rep 310). To rebut the presumption, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Garretson, 31 Ed Dept Rep 542). Where the parent continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent. 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 record before me contains three affidavits executed in October 1996, and additional affidavits executed by Evelyn Galay and Nelson Perez on January 3, 1997. These latest affidavits attempt to explain away the contradictions in the earlier affidavits, and to add additional information. All three affidavits bearing October 1996 dates indicate that the "custodial arrangement" is not to be permanent, but is to last three or four years at the most, or "until he [Jose] finishes school." In her affidavit dated October 26, 1996, Evelyn Galay makes the following statement: "My brother Nelson and I, Jose's mother, will be making decisions pertaining to the health, welfare and education of Jose. We both [sic] will be participants." Of equal significance, Evelyn Galay's affidavit dated January 3, 1997, and presumably prepared with the assistance of counsel to support this application, contains the following statement: "It was my intention to give my brother Nelson Perez and his wife Nora Perez custody of Jose. By custody, I mean that they would be responsible for his education, health and well being with my consent." (Emphasis added).

It is clear from considering the five affidavits which are contained in the record that something substantially less than a "total, and presumably permanent, transfer of custody and control" was accomplished here (Appeal of Simond, supra, at p. 121). Based upon petitioner's own statements, it is clear that Evelyn Galay has not relinquished her custodial rights and that there is a failure to rebut the presumption that Jose's legal residence continues to be with his mother in this case. On this record, I cannot find that the district acted arbitrarily by finding that Jose is not a resident of the district.