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Decision No. 13,844

Appeal of LORRAINE BOEHM, on behalf of TERRELL LASHON FERRELL, from action of the Board of Education of the Bay Shore Union Free School District regarding residency

Decision No. 13,844

(October 27, 1997)

Ingerman Smith, L.L.P, attorneys for respondent, Anna M. Scricca, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals respondent's determination that her son, Terrell, is not a resident of the Bay Shore Union Free School District ("district"). The appeal must be dismissed.

Petitioner resides at 2622 Union Boulevard, Islip, outside the district. Petitioner asserts that she and Terrell, a kindergartner, began to reside in the district on January 22, 1997, but in April 1997, she moved in with her boyfriend in Islip, outside the district, for financial reasons. Petitioner asserts that Terrell has attention deficit disorder and behavioral problems that would make it detrimental for him to change schools. Petitioner arranged for Terrell to stay until the end of the school year with his aunt, petitioner’s sister, who resides within the district at 90 Redmond Avenue, Bay Shore.

On April 2, 1997, respondent’s Director of Central Registry/Attendance sent a letter to petitioner informing her that if she moved to Islip, Terrell would not be considered a resident of the district. The letter recommended that petitioner register Terrell in Islip as soon as possible and informed petitioner of her right to appeal this determination to respondent's superintendent and the Commissioner of Education. On April 10, petitioner appealed to the superintendent and requested that Terrell be allowed to remain in the district's school for the remaining eight weeks of class. Petitioner states that this appeal was denied on April 24, 1997. Petitioner attempted to commence an appeal to the Commissioner of Education on May 13, 1997, but her petition was rejected by my Office of Counsel for failure to comply with the notice requirement of 8 NYCRR 275.11. Respondent’s president, Harry Brown, informed petitioner by letter dated May 21, 1997, that since she admitted that she no longer resided within the district and had not relinquished custody or control of Terrell, he would be excluded from the district's schools as of May 27, 1997. Petitioner resubmitted her petition on May 23, 1997, and requested a stay, which I granted on June 3, 1997, permitting Terrell to reenter the district’s schools pending the outcome of this appeal.

The appeal must be dismissed because it is moot. Petitioner requested that Terrell be allowed to finish the school year in the district. Since the relief sought was granted by the stay, and the school year is now over, there is no issue before the Commissioner. It is well settled that the Commissioner will only decide matters which are in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Postal, 36 Ed Dept Rep 1).

Even if the petition were not dismissed as moot, it would be dismissed on the merits. 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 Keenan, 36 Ed Dept Rep 6; Appeal of Brutcher, 33 id. 56). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Keenan, supra; 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, 32 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; 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, 32 Ed Dept Rep 24; Appeal of McMullan, supra).

Petitioner admits in the petition that she resides outside the district, that she supports Terrell and provides his aunt with money for his food and shelter, that she has not surrendered parental control, and that Terrell is living with his aunt to avoid the disruption of changing schools. Accordingly, there is no evidence to rebut the presumption that Terrell’s residence is that of his mother, who admittedly resides outside the district.

Since the appeal is dismissed, I decline to address respondent’s claim regarding improper service of the petition.