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Decision No. 14,075

Appeal of S.V., on behalf of J.M., from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 14,075

(February 11, 1999)

Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pine Bush Central School District ("respondent") that her son, J.M., is not a resident of the district. The appeal must be dismissed.

Petitioner resides within the New York City School District and J.M. attended school there until on or about June 27, 1998, when he began living with his aunt and uncle, who reside within respondent's district. On or about June 30, 1998, the aunt and the student met with respondent's director of guidance in connection with their application to register J.M. in summer school. On July 15, 1998, the guidance director held a residency hearing to determine whether J.M. was entitled to attend school in respondent's district. On July 16, 1998, the guidance director issued a written decision that J.M. was not a resident of the district based upon his finding that petitioner had not permanently and totally surrendered care, custody and control over the child to the aunt and uncle.

Petitioner commenced this appeal by service of a copy of her petition on respondent on August 13, 1998. Petitioner alleges that she has surrendered parental control over J.M. to his aunt and uncle and that the child resides with them in respondent's district and is therefore entitled to attend respondent's schools tuition-free. By letter dated August 26, 1998, I denied petitioner's request for a stay pending a resolution of this appeal.

Respondent contends that petitioner has not totally or permanently relinquished care, custody and control over J.M. and that its residency determination is rationally based upon the evidence introduced at the hearing and is consistent with "100.2(y) of the Commissioner's Regulations.

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 Dimbo, 38 Ed Dept Rep 233; Appeal of Daniels, 37 id. 557; Appeal of Simond, 36 id. 117; Appeal of Allen, 35 id. 112). It is presumed that a child resides with his or her parents or legal guardian (Appeal of Bogetti, 38 Ed Dept Rep 199; Appeal of Simond, supra; Appeal of Gwendolyn B., 32 id. 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted in a proper case (Appeal of Menci, 35 Ed Dept Rep 61; Appeal of McMullan, 29 id. 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 facts of the situation contradict the claim of a complete transfer of custody, the presumption of residence with the student's parent is not rebutted (Appeal of Galay, et al., 37 Ed Dept Rep 128; Appeal of Simond, supra, at p.121). For example, where the parent continues to support the child, the presumption is not rebutted and the child's legal residence remains with the parent (Appeal of Rivkin, 37 Ed Dept Rep 370; Appeal of Revella, 37 id. 65; Appeal of Aquila, 31 id. 93). 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 Cron, 38 Ed Dept Rep 149; Appeal of a Student with a Disability, 37 id. 29; Appeal of Brutcher, 33 id. 56; Appeal of Ritter, 31 id. 24).

Upon my review of the record, I find that there has been no total, permanent transfer of custody. Petitioner alleges that J.M. began living with his aunt and uncle "due to his fear of returning home after being punched and chased by a gang of boys"; that petitioner "has surrendered parental control" over J.M. to the aunt and uncle, who "exercise control" over the child; that the aunt and uncle provide the child with food, clothing, shelter and support and accept no money or other gratuities for his care; and that the child has no contact with his natural father and sees petitioner when she visits.

However, there are several items in the record that contradict petitioner's allegations and are inconsistent with the establishment of a total, permanent transfer of custody. An affidavit of petitioner submitted at the hearing states that petitioner would continue to provide the child with "food, clothing and other necessities, or money toward these items to the guardian or child"; that petitioner provides health insurance for the child; and that petitioner will claim the child as a tax deduction. The affidavit of the director of guidance states that petitioner also stated at the hearing that she contributes towards J.M.'s support, provides health insurance for him and claims him as a tax deduction. An affidavit of the aunt, also submitted at the hearing, states that the aunt and the uncle "will be supplemented by" petitioner in providing food, clothing and other necessities to the child. In addition, petitioner's affidavit states that "the initial duration of the living arrangement was permanent until [J.M.] finishes high school" and the aunt's affidavit states that J.M. "intends to reside with me for "3 years (Indefinite)".

These facts suggest that the purpose of placing the child with the aunt and uncle is to take advantage of the schools of respondent's district. Lastly, the fact that this appeal has been brought by petitioner rather than the aunt or uncle further suggests that petitioner continues to exercise some parental control over J.M.

The record before me provides no basis to find that respondent acted arbitrarily in determining that J.M. is not a resident of the district based upon petitioner's failure to effect a total, permanent transfer of custody of the child.